Sadler v General Medical Council
| Jurisdiction | UK Non-devolved |
| Judge | Lord Walker of Gestingthorpe |
| Judgment Date | 15 July 2003 |
| Neutral Citation | [2003] UKPC 59 |
| Court | Privy Council |
| Docket Number | Appeal No. 59 of 2002 |
| Date | 15 July 2003 |
[2003] UKPC 59
Privy Council
Present at the hearing:-
Lord Rodger of Earlsferry
Lord Walker of Gestingthorpe
Sir Philip Otton
[Delivered by Lord Walker of Gestingthorpe]
The Statutory Framework
The regulation of the medical profession is entrusted to the General Medical Council ("the GMC"), a long-established body whose constitution is now to be found in the Medical Act 1983 ("the 1983 Act"). The GMC's regulation of doctors' fitness to practise was until 1997 undertaken mainly by two committees, the Professional Conduct Committee (concerned with allegations of serious professional misconduct and convictions for criminal offences) and the Health Committee (concerned with unfitness to practise caused by physical or mental illness).
This appeal is concerned with a relatively new extension of the provisions regulating fitness to practise. The Medical (Professional Performance) Act 1995 ("the 1995 Act") amended the 1983 Act so as to increase the protection of the public in respect of practitioners who, while not guilty of serious professional misconduct, have fallen seriously short of proper standards of professional performance. The new arrangements are to be found principally in section 36A of the 1983 Act, as inserted by section 1 of the 1995 Act, and in the General Medical Council (Professional Performance) Rules 1997 ("the Rules"). Section 36A and the Rules came into force on 1 July, 1997.
The general effect of the changes was the establishment of two new committees of the GMC, that is the Committee on Professional Performance ("the CPP") and the Assessment Referral Committee ("the ARC"). Under section 36A the CPP has a duty, if it finds the standard of professional performance of a registered medical practitioner to have been seriously deficient, to take action by directing (section 36A(1)),
"(a) that his registration in the register shall be suspended (that is to say, shall not have effect) during such period not exceeding twelve months as may be specified in the direction; or
(b) that his registration shall be conditional on his compliance, during such period not exceeding three years as may be specified in the direction, with the requirements so specified."
However such action by the CPP is a matter of last resort. The Rules contain quite complicated provisions designed to facilitate the rehabilitation of a practitioner whose professional performance has been called into question. If he or she acknowledges that there is a problem and agrees to cooperate in a scheme for mentoring and retraining, any formal adjudication by the CPP may be unnecessary. But where a plan for retraining goes wrong, as unfortunately happened in this case, the CPP may find itself having to adjudicate on complaints which originated a considerable time before.
The Rules provide for three main processes: screening; assessment; and if necessary, formal adjudication by the CPP as to a practitioner's professional performance. The processes may become quite protracted in that there may be as many as three assessments before the eventual decision that a practitioner is to be permitted to continue unrestricted practice, or alternatively that he or she should undergo formal adjudication. What follows is only a brief summary of the effect of the 34 rules and their three schedules.
When any relevant complaint or information about a practitioner is received by the GMC it is referred to a screening process undertaken by a medical screener and a lay screener, who are respectively medical and non-medical members of the GMC. They may agree that no further action is necessary (rules 3 to 5). If they consider that the practitioner ought to be assessed and he or she agrees, the medical screener prepares a statement in order to initiate the assessment process, thus obviating the need for the ARC to become involved. Otherwise the medical screener refers the case to the ARC, which decides whether there should be an assessment (rules 6 and 14 to 16).
The assessment process is initiated and supervised by a case co-ordinator who is a medical member of the GMC (rule 7). It is conducted by an assessment panel including a doctor who is lead assessor, another doctor and a lay person, none of whom is a member of the GMC. The procedure to be followed by an assessment panel is prescribed in some detail (rule 11) but it is essentially informal. The panel conducts interviews rather than examining witnesses. The persons whom they interview include the complainant, the practitioner and up to five persons nominated by the practitioner. The assessment panel can also seek advice or assistance from any person who might in their opinion assist them. If a practitioner fails to co-operate with the panel they are to make a report to the case co-ordinator, who refers the case to the CPP (rule 12). On completing their assessment the panel prepare a report and send it to the case co-ordinator or (in a case where the CPP itself has directed the assessment, as it can under rule 27) to the CPP (rule 13). By rule 13(2) the report is required to include the panel's opinion
"on such of the following matters as appear to them to be relevant in any case, that is to say whether –
(a) the standard of the practitioner's professional performance has been seriously deficient;
(b) the standard of the practitioner's professional performance is likely to be improved by remedial action;
(c) the practitioner should limit his professional practice, or cease professional practice;
(d) no further action needs to be taken on the Report
and in each case the Panel's reasons for their opinion."
Part V of the Rules (headed "Procedure following assessment") contains rules 17 to 26 and is of particular importance in this case. Rule 17 in effect sets out options for the case co-ordinator (acting in consultation with a lay adviser) on receipt of the assessment panel's report. The outcome may be that the case is referred at once to the CPP or that it is decided to take no further action. Otherwise (and in practice this seems to happen in the majority of cases) the case co-ordinator is to draw up a statement of requirements and send it to the practitioner (rule 17(10)).
Paragraphs (1), (2) and (3) of rule 18 provide as follows:
"(1) In drawing up the statement of requirements the case co-ordinator shall have regard to the findings and opinions in the Report of the Assessment Panel and the statement may include such of the following matters as are appropriate in any case –
(a) the aspects of the practitioner's professional performance which he is required to improve;
(b) the standard of professional performance which the practitioner is required to achieve;
(c) the aspects of the arrangements for the running of his professional practice which the practitioner is required to improve;
(d) the limitations which the practitioner is required to impose on his professional practice.
(2) The statement of requirements shall state the date on which the practitioner is to have fulfilled the requirements set out in the statement of requirements and the period during which the statement of requirements shall have effect and shall include a provision that further assessment is to be carried out after the date on which the practitioner is to have fulfilled those requirements.
(3) The date referred to in paragraph (2) shall be no longer than one year from the date on which the practitioner agrees, under paragraph (4), to comply with the statement of requirements."
If the practitioner agrees to comply with the statement of requirements and consents to appropriate disclosure of that fact, the process of compliance begins. Otherwise the case is referred to the CPP. By rule 19 the case co-ordinator and the practitioner may agree in writing to modify the statement of requirements. If the practitioner declines to agree to modification, the case co-ordinator has the option of referring the case to the CPP or continuing with the original statement.
Once the process of compliance has been embarked on, there are several possible outcomes. The most important of these are as follows:
(1) successful compliance followed by a successful second assessment under rule 20;
(2) a second assessment which is not wholly successful, followed by a second statement of requirements (also regulated by rules 18 and 19) and a third assessment under rules 23 and 24 (which largely incorporate rules 20 and 17 respectively, except that there can be no third statement of requirements);
(3) referral of the case to the CPP by the case co-ordinator under rule 25(1).
Rule 25(1) is of particular importance, because of a jurisdictional point taken on this appeal. It provides as follows:
"Where, at any stage in the consideration of a case after an assessment has been carried out, the case co-ordinator is of the opinion that –
(a) it is necessary for the protection of members of the public or would be in the best interests of the practitioner for a direction for suspension or for conditional registration to be made; or
(b) the practitioner is –
(i) failing to comply with the requirements set out in the state of requirements, or
(ii) failing to benefit from and is unlikely to benefit from any education or training which he is undertaking in accordance with a statement of requirements; or
(c) the practitioner's fitness to practise may be seriously impaired by reason of his physical or mental condition
he shall refer the case to the Committee on Professional Performance together with a statement of his opinion and his reasons for it."
By rule 26 a reference to the CPP may be withdrawn in certain cases. By rule 27 the CPP itself can give directions requiring an assessment to be carried...
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