E-Regulator: Depner v General Medical Council (unreported)

11 June 2012


Decision Date: 4 May 2012

The Fitness to Practise Panel of the General Medical Council (GMC) were correct to find a Registrant’s fitness to practise impaired when the Registrant had failed to comply with an agreed undertaking to undergo professional performance assessments when invited to do so.

Doctor Depner (D) appealed against a decision of the GMC’s Fitness to Practise Panel (‘the Panel’) that her fitness to practise was impaired by reason of her misconduct and to suspend her from practising as a doctor for nine months.

D was an out-of-hours doctor who, following several patient complaints, had been subject to performance assessment in 2007. The GMC imposed practice conditions which were lifted when she agreed to a set of undertakings. Undertaking 12 required her to undergo a professional performance assessment if invited to do so.

D then failed an entry assessment for a training course to enable her to start remedial training practice. In accordance with undertaking 12, D was invited to undergo professional reassessment, which D did not do. The Registrar of the GMC then referred the matter to the Panel pursuant to its statutory powers.

The Panel found that D’s professional performance was deficient in that she put patient safety at risk and committed misconduct by breaching undertaking 12. The Panel concluded that her fitness to practise was impaired and suspended her for nine months. D appealed on seven grounds which were rejected by the High Court as follows:

  1. The 2007 assessors had not gone beyond their mandate by considering D’s performance in areas other than as an out-of-hours doctor. There was no such limitation in the GMC (Fitness to Practise) Rules Order of Council 2004 (‘the Rules’), which gave them powers to adopt necessary measures to assess her professional performance having regard to the nature of her employment;
  2. The Panel had not improperly relied on D’s training programme entrance test score in finding that she presented a risk to patient safety. This finding was justified by the evidence which the Panel heard from the Doctor who administered the test;
  3. The 2009 invitation for reassessment had not been contrary to a statutory requirement of a deterioration in performance. There was no such limitation in the Rules; the Registrar was entitled to carry out any investigations appropriate to the consideration of fitness to practise;

  4. Although the Registrar’s referral only mentioned deterioration in performance, the Panel were not confined to this. In accordance with section 35C of the Medical Act 1983, the statute empowered the Panel to consider whether D’s fitness to practise was impaired by reason of deficient professional performance at the time of the hearing; 

  5. D argued that undertaking 12 did not require D to agree to an assessment until after assessors had been appointed. The Appeal Court disagreed and held that the breach could take many different forms; which included a unilateral refusal or failure to participate when requested;

  6. The Appeal Court found that there was sufficient evidence to support the Panel’s findings of deficiency and misconduct and there was nothing to justify a conclusion that their decision was wrong (Fatnani v GMC [2007] EWCA Civ 46);
  7. The sanction was not improper, given the risks to patient safety and the background of D’s performance levels. The Panel had correctly approached the sanction starting with the lowest level and working its way up to the minimum necessary and appropriate sanction.

This decision clearly reinforces the importance of Registrants complying with set performance undertakings, particularly when patient safety is potentially jeopardised by non-compliance.

By Sian Jones

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