‘De-risking’ and financial exclusion
High Court finds that fitness to practise panel’s failure to find misconduct was unduly lenient.
Doctor N practiced neurofeedback. He had an online blog in which members of the public were able to ask him questions which he would answer online. One user of the service complained about an answer given and an investigation by the General Medical Council (GMC) ensued. N had later added a disclaimer onto the site that any advice or opinion given on the blog should not be taken as a medical or psychiatric service.
A fitness to practice panel (the Panel) of the GMC heard allegations relating to the blog. They found that N failed to; recommend that 20 users see a doctor or psychiatrist; address one user’s particular needs; recommend that 30 users attend a course of counselling, and request further information with a view to determining a diagnosis for 8 users. However, the Panel found that N’s blog did not amount to medical practice and that there was no Council guidance that applied to online practice, such that there had been no misconduct.
The Professional Standards Authority (PSA), now CHRE, appealed this decision on the basis that it was unduly lenient. They were supported in this application by the GMC.
It was argued on behalf of the PSA that the Panel had misdirected itself on the meaning of misconduct by focusing on the narrow issue of whether the blog amounted to medical practice, rather than on the wider question of whether the conduct was in the exercise of professional practice or part of the doctor’s medical calling. They further argued that the Panel had wrongly failed to have regard to the expectation of users and to the appropriate council guidance.
The Court agreed that the Panel had asked too narrow a question when considering misconduct. It ought to have followed the principles laid down in Remedy UK v General Medical Council  EWHC 1245, asking itself whether the conduct was in the exercise of professional practice such that it could properly be described as misconduct going to fitness to practise. The Panel ought to have considered whether, even if the conduct did not arise in the context of clinical practice, whether it was in the execution of a doctor’s medical calling.
The Court held that the Panel were wrong to dismiss as irrelevant the fact that it was not known how many people were aware that there would not be a traditional doctor/patient relationship, however small in number. The fact that N had added a disclaimer should have made this clear to the Panel. If psychiatric practice was to be carried out online, there had to be a very clear statement of the limitations that applied to those accessing the service.
It was further held that there had been a significant failure in the Panel’s reasoning as to why there had been no failure to comply with Council guidance.
Accordingly, the appeal was allowed and a finding of misconduct substituted. The question of impairment was remitted to a fresh panel.
We await the full decision before full analysis. Those providing medical advice or discussing medical matters online must be alive to the need to ensure that potential users are aware of the limitations of that advice/comment.
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