Case Update: Can a series of non-serious misconduct findings cumulatively amount to serious misconduct that impairs a doctor’s fitness to practice?

30 July 2015

Schodlok v General Medical Council [2015] EWCA Civ 769

Judgement date 21/7/15

Original decision

On 15 February 2013 a Fitness to Practice Panel (the Panel) of the Medical Practitioners Tribunal Service (MPTS) found that Dr Schodlok (S), who at the relevant time had been working as an orthopaedic registrar in Woolwich, had been guilty of four instances of serious misconduct and six instances of misconduct which did not amount to serious misconduct. 

Those that were found to amount to serious misconduct were;

  1. That S had shouted at Mr Marshall (a colleague) in the presence of Patient  B
  2. That S was rude and verbally aggressive towards Mr Marshall when he reminded her that Patient C was waiting to be seen
  3. That S was rude and verbally aggressive towards Mr Marshall during the fracture clinic, when S did attend upon Patient C
  4. That S refused Mr Marshall’s request for further investigations into Patient D’s calf pain during the treatment of D

Those that were found to amount to misconduct but not serious misconduct were;

  1. That S failed to prescribe of arrange adequate analgesia for patient A for the manipulation of a fracture
  2. That S said to Mr Marshall ‘you have messed up, you have done things wrong and now this patient will need surgery’ or words to that effect
  3. That S wrongly accused Mr Marshall of throwing a brace at her in the clinical area
  4. That S did not act on the potential symptoms of deep vein thrombosis in relation to patient D
  5. That S was verbally aggressive towards the orthopaedic consultant surgeon
  6. That S was rude and verbally aggressive to a sister in the Day Care Unit

The Panel found S’s fitness to practise impaired and directed that her registration be made subject to various conditions.

High Court Appeal

In June 2013, S appealed the findings of the panel to the High Court, on a number of grounds, which included the decision to hear a key witness’ evidence by videolink, a decision to restrict cross examination of the same witness and non-admission of defence evidence, all of which were rejected. Importantly for present purposes S also sought to challenge findings of fact by the Panel that related to those matters that the Panel found not to amount to serious misconduct.  His Honour Judge Sycamore however, held that the findings of fact which the Panel found did not amount to misconduct or serious misconduct were not further relied upon by the Panel and were therefore not relevant to this appeal. In short, he restricted the scope of the appeal before him to the findings of serious misconduct and did not allow S to advance her arguments in relation to findings of simple misconduct.

Permission for further appeal

Black LJ granted S permission to appeal on a single ground, namely whether HHJ Sycamore had been wrong to restrict the scope of the appeal to the findings in relation to serious misconduct only. Black LJ also adjourned S’s application for permission to appeal on a range of further grounds to be heard by the court dealing with the substantive appeal.

Court of Appeal

The Court first considered the permission to appeal point. After argument it was decided that permission should be granted in respect of two further grounds; firstly as to the four findings of serious misconduct and secondly, as to the conclusion that S’s fitness to practice was impaired and as to sanction. It therefore fell to the Court to consider the following issues;

  1. Did the Panel take into account the proven incidents of non-serious misconduct in determining whether S’s fitness to practise was impaired?
  2. Was the Panel right to find each of the four instances of serious misconduct proved?
  3. Was the Panel right to find that S’s fitness to practise was impaired, as a result of the instances of serious misconduct that were proved?
  4. Was the sanction imposed one that could properly have been imposed?

In addition, the GMC asked that the Court consider a further issue of general importance, namely whether it is open to a fitness to practise panel to conclude on the basis of a series of findings of non-serious misconduct that they collectively constitute serious misconduct. 

Judgement

1. Did the Panel take into account the proven incidents of non-serious misconduct in determining whether Dr Schodlok’s fitness to practise was impaired?

The Court held that having considered the decision of the Panel as a whole it could not fairly be said that the Panel took no account of the findings of non-serious misconduct in determining whether or not S’s fitness to practise was impaired. Although they were directed both in submissions and by the legal assessor that they must first have found that any misconduct was serious before considering impairment, the panel make clear that its concern was a ‘pattern’ of behaviour towards ‘professional colleagues’. There are passages which demonstrate that the Panel was considering the previously expressed concerns, especially given that the serious misconduct charges only related to Mr Marshall.  In all the circumstances it was clear that the Panel wrongly took into account the entire run of serious and non-serious misconduct findings in determining whether S’s fitness to practise was impaired.  It followed that Judge Sycamore was wrong not to have allowed S to argue those points.

2. Was the Panel right to find each of the four instances of serious misconduct proved?

The Court went through each of the four charges found to have amounted to serious misconduct and found that each of these findings was wrong and could not stand.  The evidence did not support the findings made.

3. Was the Panel right to find that S’s fitness to practise was impaired, as a result of the instances of serious misconduct that were proved?

Given the findings of the Court  in relation to point 2, it followed that the Panel should not have reached the conclusion that S’s fitness to practice was impaired by the instances of serious misconduct, as each of those findings were wrong.

The question of whether it would have been open to the Panel to find the necessary serious misconduct (in accordance with Auld LJ’s dictum in Meadow) on the basis of the six non serious misconduct charges was then considered.  It was argued on behalf of the GMC that the Panel was entitled to consider the ‘single’ allegation which was made on the charge sheet (namely that by reason of the facts alleged, S’s fitness to practice was impaired by virtue of misconduct). 

However, giving judgement Vos LJ held that "had the GMC wished to rely on S’s supposed ‘serious behavioural problem’ or her inability generally to deal properly with colleagues and staff, it would have been far better to have charged that expressly as an incident of misconduct, if only as an addition to the specified charges and as a conclusion to be drawn from them’’ [61]. 

Vos LJ held that it was not open to the Panel to bring in findings of non-serious misconduct in relation to the treatment of staff apart from Mr Marshall to feed its findings that S’s fitness to practice was impaired.   Their findings on impairment should therefore be set aside.

He went on to say;

"I do not think that we should opine on the theoretical possibility that, in a particular case on different facts, a series of non-serious misconduct findings could, taken together, be regarded as serious misconduct.  For my part I would not think that the possibility of taking such a course in a very unusual case on very unusual facts should be ruled out, but I would prefer to leave the argument for a case in which such facts were said to arise.  In the normal case, I do not think that a few allegations of misconduct that are held individually not to be serious can or should be regarded collectively as serious misconduct.  In this case, I am quite sure that the remaining 5 non-serious misconduct charges found to be proved could not accumulate to a finding of serious misconduct.  That is all, as it seems to me, we should say at this stage". [63]

It is important to note that on this specific point, Lord Justice Beaton added a short judgement, stating that he is ‘less sceptical’ than his colleague about whether a series of non-serious misconduct findings could, when taken together, be regarded as serious misconduct which impairs a doctors fitness. It was said that since the question did not fall for decision the Court would be cautious in expressing a view. However Beaton LJs does not confine the possibility of this happening to ‘very unusual cases on very unusual facts’ as did Vos LJ. 

Beaton LJ’s ‘tentative and very preliminary view’ is that;

"provided it is clear from either the charge brought by the GMC or the way the case against the doctor is presented at the hearing, that any adverse findings by the panel on matters identified in the charges might be cumulated inn this way, so that the doctor is aware this is a possibility, such an approach should in principle be open to the panel.  I recognise that a small number of allegations of misconduct that individually are held not to be serious misconduct should normally not be regarded collectively as serious misconduct.  Where, however, there are a large number of findings of non-serious misconduct, particularly where they are of the same or similar misconduct, I consider the position is different.  In such a case, it should in principle be open for a Fitness to Practise Panel to find that, cumulatively, they are to be regarded as serious misconduct capable of impairing a doctor’s fitness to practise."[72]

4. Was the sanction imposed one that could properly have been imposed.

As a result of the above findings, the conditions ought not to have been imposed and the appeal allowed.

It was decided that the matter should be remitted to the Panel for it to reconsider the existing allegations of non-serious misconduct in the light of this judgement and the evidence already before the Panel. The Court suggested to the Panel that it may be suitable to consider the imposition of a warning. The Court did not remit the allegations of serious misconduct for a re-hearing as the evidence before the Panel did not support them.

The interesting point in this case relates to whether a number of non-serious misconduct findings can cumulatively amount to serious misconduct.  The matter did not fall to be categorically decided in this case but the judicial comment is interesting.  Vos LJ was of the view that in ‘very unusual’ cases this may be possible, but that the regulator would need to make this clear in their charges. 

Beaton LJ’s view was that such findings would not be confined to ‘unusual’ cases and that such findings should be open to panels to reach, provided it is clear from either the charge brought by the regulator or the way the case is presented. 

In cases where the regulator’s case is that a number of minor/less serious indiscretions become serious in their repetition or pattern, it may be wise in light of this judgement to specifically state so in the allegation or charge.

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