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(2003) 1 WLR 2259,(2004) HRLR 8,(2004) Lloyd's Rep Med 44., Privy Council - John Hendy QC, Bella Webb
The General Medical Council's Committee on Professional Performance had jurisdiction to determine the referral of a complaint about the performance of appellant consultant surgeon. There was nothing irregular or unfair in its approach and the intermediate and final conclusions it reached were not unsafe.
Appeal by a doctor ('S') from the decision of the Committee on Professional Performance ('CPP') of the General Medical Council ('GMC') that his registration as a medical practitioner should be made conditional for three years. S was a consultant surgeon in obstetrics and gynaecology with a National Health Service trust. In December 1997 he was suspended as a result of five incidents during his work as a surgeon between July and December of that year. The NHS trust subsequently notified the GMC and in September 1998 the assessment process under the professional performance regime began. The process was completed before the Privy Council's decision in Krippendorf v General Medical Council (2001) 1 WLR 1054 was made, concerning the operation of the General Medical Council (Professional Performance) Rules 1997 and therefore without the benefit of guidance given in that case. Accordingly the assessment panel did not concentrate on the particular incidents giving rise to the assessment. The assessment panel decided S's performance was unacceptable and recommended remedial action to improve S's performance, in the form of retraining and temporary supervision. In July 1999 the case co-ordinator produced a statement of requirements with which S agreed to comply. Through no fault of S, his training placement did not commence until July 2000. S made a surgical error during his training as a result of which the placement was terminated after three days. S unsuccessfully attempted to obtain a new training placement. On 2 November 2000 the case co-ordinator decided to refer S's case to the CPP under r.25(1)(b)(i) of the Rules because S was no longer being re-trained in accordance with the statement of requirements. The CPP found that S's standard of professional performance was seriously deficient in relation to good operative care. In doing so it had examined in detail the five incidents that originally gave rise to the assessment process, as well as the incident leading to the termination of S's training placement. That approach resulted from a legal assessor's advice that there were errors in the assessment panel's approach and the CPP should not rely on the contents of conclusions of the assessment panel's report or anything adverse to S in third party interviews. Ultimately, the CPP determined to make S's registration conditional for a period of three years. S's grounds of appeal related to: (i) the CPP's jurisdiction under the referral; (ii) the reasoning of the CPP including the finding of a pattern of seriously deficient performance; (iii) the standard of proof; and (iv) apparent bias arising from the fact that the CPP was composed solely of members of the GMC.
HELD: (1) Under the statement of requirements S was obliged to take effective action to improve his professional performance by 24 August 2000. S's non-compliance with the statement did not end as of that date because the statement had effect until 24 November 2000. Although S did all he could to achieve effective re-training, he had not done so and the case co-ordinator had no reasonable alternative but to refer the case to the CPP. That referral was authorised by r.25(1)(b)(i) of the Rules and the CPP had jurisdiction to hear S's case. (2) The CPP did not err in its consideration of the four surgical incidents in relation to which it made adverse findings. It was entitled to take those incidents into account in reaching its final conclusions. (3) There was nothing irregular or unfair in the CPP's approach or in its continuation of the hearing after the legal assessor's advice. The CPP's overall conclusions and its conclusions on the individual incidents were not unsafe although it could have adopted a different approach, for example, in relation to putting the specialist medical adviser's views to other expert witnesses. (4) In general, when determining whether the standard of a practitioner's performance had been seriously deficient the ordinary civil standard of proof should be applied by the CPP. In exceptional cases a heightened civil standard of proof might be appropriate. Furthermore, a criminal standard might be appropriate where the conduct in question would also found serious criminal charges (McAllister v General Medical Council (1993) AC 388). (5) The CPP, as a tribunal for self-regulation of professionals, satisfied the requirements of independence, impartiality and fairness under Art.6 of the European Convention on Human Rights. Albert and Le Compte v Belgium (1983) 5 EHRR 533, Bryan v United Kingdom (1995) 21 EHHR 342 considered.