1 Cheatle v GMC[2009] EWHC 645 (Admin) at [17].

2 Reform of the Fitness to Practise Procedures at the GMC: Changes to the Way we Deal with Cases at the End of an Investigation (GMC, 2011). OHPA had been established by s 98 of the Health and Social Care Act 2008 as a result of strongly worded recommendations of the Fifth Shipman Report: Safeguarding Patients: Lessons from the Past – Proposals for the Future (GMC, 2004). In 2010 OHPA became a casualty of the coalition Government's ‘cost-cutting’ cull of quangos.

3 Medical Act 1983 (Amendment Order), SI 3135/2002.

4 GMC, 2011, above n 2, at 25.41.

5 Nor is there any definition in associated legislation or in the GMC's own guidance.

6 Medical Act 1983, s 35C.

7 GMC, 2011, above n 2, at 25.43. See eg the Privy Council's laboured attempt to define ‘serious professional misconduct’ in Doughty v GDC[1988] AC 164 at 173.

8 Ibid, at 25.46.

9 Ibid, at 25.50, cited with approval in Zygmunt v GMC[2008] EWHC 2643 (Admin) at [29].

10 Health and Social Care Act 2008, s 112, harmonising the standard of proof amongst regulators of the health professions and transforming the standard applicable to FTPP hearings from the criminal standard to the civil standard.

11 Zygmunt v GMC[2008] EWHC 2643 (Admin) affirmed in Cohen v GMC[2008] EWHC 581 (Admin). It may be that the same facts which give rise to the finding of misconduct are also sufficient to give rise to a finding of impairment and that these two issues do not need to be formally separate ‘stages’ in the decision making process, although it is advisable that their consideration is clearly separated: Saha v GMC[2009] EWHC 1907.

12 Mitting J in Zygmunt v GMC[2008] EWHC 2643 (Admin) at [27]. It is not clear why he seems to have assumed this to be the case. It may have been due to the fact that although statute moved from a test of ‘serious professional misconduct’ to one of ‘misconduct’, the courts have resisted suggestions that a lower threshold is to be applied and have reverted to the old standard of serious misconduct: eg Meadow v GMC[2006] EWCA Civ 1390; [2007] 1 QB 462 at [198]–[200], per Auld LJ and applied in Yeong v GMC[2009] EWHC 1923 (Admin) at [18].

13 In Azzam v GMC[2008] EWHC 2711 (Admin); (2009) 105 BMLR 142, Mr Justice McCombe stated, at [44]: ‘....it must behove a FTP Panel to consider facts material to the practitioner's fitness to practise looking forward and for that purpose to take into account evidence as to his present skills or lack of them and any steps taken, since the conduct criticised, to remedy any defects in skill...it is clear...that evidence of a doctor's overall ability is relevant to the question of fitness to practise.’

14 Yeong v GMC[2009] EWHC 1923 (Admin) at [21].

15 Ibid, these matters were not relevant to step two of the procedure (ie whether misconduct had been committed, and must be reserved for step three): Cohen v GMC[2008] EWHC 581 (Admin).

16 GMC, 2011, above n 2, at 25.48.

17 [2009] EWHC 1923 (Admin).

18 Cheatle v General Medical Council[2009] EWHC 645 (Admin).

19 Suspension can be ordered on an indefinite basis in health cases (s 35D(6)), but only at review hearings.

20 See eg Dr Gunasekera, Dr Kashyap and Dr Le Roux (all August) – a finding of ‘impairment’ was sufficient sanction. Findings of impairment appear on the publicly accessible ‘history’ section of a doctor's record on the List of Registered Medical Practitioners (LRMP). A finding of misconduct but without a finding that FTP is impaired is not recorded on the publicly available sections of the LRMP.

21 General Medical Council (Fitness to Practise) Rules Order of Council 2004 (as amended), r 17(2)(m) and paras 49–55 of Indicative Sanctions Guidance (GMC, updated April 2009). Undertakings are published on the LRMP.

22 Medical Act 1983, s 35D(3). The warning replaced the reprimand which was not recorded on the register but details of which were available on request. Warnings were introduced as part of the 2002 reforms and first used in 2004. They can be imposed by the FTPP, by Case Examiners or by the Investigation Committee (s 35C(6)).

23 Erasure was available in 350 (of the 371) cases and was applied in 78 of these.

24 The General Medical Council publishes 12 months of FTP decisions on its website, available at http://www.gmc.org.uk.

25 At these hearings, the Investigation Committee is only empowered to decide whether to impose a warning or take no action against the doctor's registration.

26 137 of the cases (36.9%) involved allegations which were not directly related to clinical practice but were nevertheless clearly work-related (this included forms of unacceptable behaviour towards staff or patients, inappropriate relationships with patients, abuse of resources (eg using prescription powers to prescribe for self) and poor management).

27 See Kituma v NMC[2009] EWHC 373.

28 This chimes with para 57 of Good Medical Practice (GMC, 2006).

29 Dr Ikwueke (July).

30 Including attending child protection courses, attending paediatric clinics, revision of surgery protocols.

31 See eg ‘Surgeon removed wrong kidney from cancer patient – but doesn't even receive a warning’Scotsman 25 February 2010; ‘No action against “wrong kidney” surgeon’ available at http://news.bbc.co.uk/1/hi/scotland/8534484.stm.

32 Dr Baloch (October). This mirrors the similar finding in Pillai v GMC[2009] EWHC 1048 (Admin).

33 Dr Brice (October).

34 Dr Cason (August).

35 Dr Kijewski (November).

36 In 86 of the 100 cases erasure was an available sanction and it was ordered in 23 of these. Cf the 22% incidence of erasure in the 2009–2010 cases overall, as indicated above.

37 Above n 2, at 25.44.

38 Saha v General Medical Council[2009] EWHC 1907 (Admin) at [99].

39 A number of these cases were dealt with by the Investigation Committee. Here, the GMC's Case Examiners had resolved that the case against the doctor should be resolved by issuing a warning and the doctor had challenged this finding, generally arguing that a warning would be disproportionate (under the General Medical Council (Fitness to Practise) Rules 2004, r 11(3)). The Investigation Committee hears the case for both sides and determines whether a warning should be issued.

40 Most of these being offences under the Road Traffic Act 1988.

41 Eg Dr Hamilton (September), Dr Townsley (October), Dr Heaver (March), Dr Sarkar (March) (no impairment resulting from the conviction).

42 Dr Meller (February) was sentenced to 2 years in prison for his offence.

43 Dr Nankhonya (August).

44 Dr Kakati (August).

45 Good Medical Practice, above n 28, para 58 requires doctors to disclose cautions, convictions or charges for criminal offences to the GMC as soon as possible and para 68 requires doctors to cooperate with any formal investigation of complaints made against them or others.

46 Eg the case against Dr El Alami (February) relying on the first paragraph of Good Medical Practice.

47 Eg a failure to attend hearings and a conviction for violence against a woman (Dr Ramakrishnan, February); a conviction for fraud and disregard for the regulatory system including working while suspended (Dr Williams, February) and a pattern of offences including breaches of the peace, being drunk and disorderly and concealing status as doctor from the police (Dr Waygood, March).

48 Dr Williams (February).

49 Dr Bennett (August), Dr Kakati (August), Dr Nankhonya (August), Dr Sarkar (March), Dr Searle (March), Dr Brown (April).

50 Eg as in the case against Dr Searle (March).

51 Case against Dr Brown (April).

52 The term ‘non-consensual’ is used here to distinguish these cases from those discussed later where there is a failure to maintain boundaries (an intimate relationship with a patient). The failures to maintain boundaries discussed later are treated here as being consensual, although some might regard that consent is marred by considerations of the power and influence of the doctor and the vulnerability of the patient (the therapeutic relationship).

53 Also in Dr Spicer's case (January), 25 years of unblemished career was of no assistance in finding that acts of accessing child pornography ought to result in erasure.

54 Dr Johnson (July).

55 Dr Keerthy (September).

56 Eg in the case of Dr Tangotra (October) – the FTPP had ‘no doubt’ that two convictions for rape meant that FTP was impaired. The same wording was used in the case of Dr St John (January) in relation to sexual assault convictions relating to conduct during examination of a patient who was 7 months pregnant.

57 Indicative Sanctions Guidance (GMC, updated April 2009), para 94.

58 Ibid, para 94.

59 Dr Rao (May) (sexual touching of junior house doctor) and Dr Azim (August 2009) reviewed in July 2010 (nursing assistants).

60 Dr Rao (May) – minutes of the original hearing clearly indicated that it would have been different if the allegations had concerned a patient rather than a colleague.

61 See eg the FTPP case of Dr Marsden-Williams (April) in which a doctor considered to be dishonest in her private life ‘jeopardises patient safety’ because she cannot be trusted to be truthful in a professional context, and also the judgment in Bradshaw v GMC[2010] EWHC 1296 (Admin).

62 Only one of these concerned a patient: see the case of Dr St John, above n 56.

63 Case against Dr Mir (October). This case involved no other allegations being brought forward but a warning was still considered to be appropriate.

64 It is clear that this outcome is strongly supported by case law: CHRE v General Dental Council and Fleischmann[2005] EWHC 87 (Admin) where Justice Newman rejected a 12-month suspension for offences of child pornography as ‘unduly lenient’ and failing to take account of the need to protect public confidence and mark the gravity of these offences.

65 See eg Dr Manley (November).

66 Cases against Dr McLuskey (August), Dr Clayton (July), Dr Taylor (September) and Dr Manley (November).

67 The courts have always preserved regulators' prerogative to take action against ‘disgraceful conduct’ which might reflect upon the profession: see A County Council v W (Disclosure)[1997] 1 FLR 574; Marten v Royal College of Veterinary Surgeons' Disciplinary Committee[1966] 1 QB 1.

68 Maintaining Boundaries: Guidance for Doctors (GMC, 2006).

69 See above n 16 and n 17 with accompanying text, and the comment per Sales J: ‘the efforts made by the medical practitioner...to address his behaviour for the future may carry very much less weight than in a case where the misconduct consists of clinical errors or incompetence’ at [48].

70 The case resulted in a finding of misconduct but no further sanction.

71 Dr Craig (June) and Dr Pultar (no evidence that the relationship was sexual) (November).

72 Dr Craig (June).

73 Eg in the case of Dr Craig, text accompanying above n 71 and n 72: ‘In the light of your limited insight and your continued denial, the Panel is of the view that you still constitute a risk to patients.’

74 Evidenced in the cases of Dr Hickson (12-month suspension despite insight being demonstrated) (January) and Dr Pultar (November). See also Wentzel v General Medical Council[2004] EWHC 381 where the importance of maintaining public confidence in such cases was regarded as more important than the public interest in retaining a good doctor and the doctor's interests in being allowed to continue to practice, at [25].

75 Bevan v General Medical Council[2005] EWHC 174 (Admin) at [20].

76 See eg Giele v General Medical Council[2005] EWHC 2143 (Admin); Council for the Regulation of Healthcare Professionals v the General Medical Council and Leeper[2004] EWHC 1850 (Admin); CHRE v GMC and Solanke[2004] EWHC 944 (Admin) finding that a 3-month suspension was not ‘unduly lenient’; cf the not easily distinguished case of Wentzel v General Medical Council[2005] EWHC 87 (Admin) – sanction of erasure endorsed.

77 Bevan v General Medical Council[2005] EWHC 174 (Admin) at [20].

78 Council for the Regulation of Healthcare Professionals v the General Medical Council and Leeper[2004] EWHC 1850 (Admin).

79 ie Dr Pillai (February) (obtaining assistance from a patient to complete an essay) and Dr Afzal (October) (using data from clinical records to make contact with a patient privately).

80 Dr Crawford (January). The result may have been a consequence of the betrayal felt by patient A's husband who was also a patient of Dr Crawford.

81 See above n 52.

82 Indicative Sanctions Guidance, above n 57, paras 92–93.

83 Good Medical Practice, above n 28, para 56.

84 As per the statement in Yeong above. See also case against Dr Czaslawska (February) where Yeong is cited in connection with dishonesty.

85 Singh v GMC[1998] UKPC 23 at [7].

86 Dey v General Medical Council[2001] UKPC 44, my emphasis.

87 R v Ghosh[1982] EWCA Crim 2 – a two-part test requiring D's conduct to be dishonest according to the ordinary standards of reasonable and honest people and that D must have realised what he was doing was dishonest by those standards (per Lord Lane CJ); this objective/subjective approach was confirmed by the House of Lords in Twinsectra Ltd v Yardley[2002] UKHL 12; [2002] 2 AC 164 and in the specific context of disciplinary proceedings in Bryant v Law Society[2007] EWHC 3043 (Admin); [2009] 1 WLR 163.

88 Dr Deng (May) – issuing two prescriptions for patients and entering them onto the records of other patients amounted to dishonesty but the FTPP took into account his expressions of apology and regret and an otherwise unblemished career.

89 Dr Khogali (February).

90 Dr Alsaieq (January).

91 Dr Khogali (February) and Dr Piek (February).

92 Dr Ghazanfar (March).

93 As per Dr Berry (December) where operating a slimming clinic for 10 years which prejudiced the health of its patients and was characterised by dishonest conduct described as so egregious that it could not be remediated.

94 As in Dr Ghazanfar's case (March).

95 Dr Iceton (December).

96 Dr Rastogi (November).

97 Dr Karwal (March).

98 Dr Gilbey (July).

99 Dr Sakhi (May).

100 (June).

101 (April). See also Dr Ngoma (review hearing in November 2009): attending short courses and CPD activities in relation to clinical work did not go towards remediation of her dishonesty in telling her employer that she had travelled in a taxi due to gout rather than due to her driving disqualification.

102 Singh v GMC[1998] UKPC 23; Manzur v GMC[2001] UKPC 55 (erasure disproportionate for convictions of five counts of false accounting indicating ‘blatant’ dishonesty, but representing a benefit of at most £728, 3 months suspension substituted), Makki v GMC[2009] EWHC 3180 (Admin).

103 These 87 cases were new as opposed to review cases.

104 (November).

105 See eg Dr Mitra (June) (single incident of dishonesty but no engagement or remediation); Dr Quick (June) (multiple instances of dishonesty). Erasure was notably applied in all cases where there had been allegations of fraud in the completion of cremation certificates (Dr Mukhopadhyay (December); Dr Lakshmi (April)). This is undoubtedly a sensitive issue for the medical profession given the circumstances in which Dr Shipman's crimes went undiscovered for so long.

106 Yeong v GMC[2009] EWHC 1923 (Admin); Cohen v GMC[2008] EWHC 581 (Admin).

107 See eg Dr Scott (February).

108 Dr Sawyerr (November).

109 Dr Adeyemi (January).

110 Dr Mehta (October).

111 See Dr St John (January) where pleading not guilty counted against him: by not pleading guilty he had required the victim to undergo the trauma of a court case.

112 Eg Dr Bhatnagar (October), Dr Kataya (December), Dr Tripathi (December) and Dr Apta (January).

113 Pillai v GMC[2009] EWHC 1048 (Admin).

114 Dr Adeyemi (January), Dr Compton (January). This application receives some support from the judgment of Leveson J in CHRE v GMC and Solanke[2004] EWHC 944 (Admin) which comments that expressions of remorse which are not accompanied by a willingness to answer questions about the misconduct are unlikely to be convincing, at [52].

115 See also the GMC's procedures for voluntary erasure: although these cannot be used to evade sanction – eg Dr Cason (August).

116 Above n 42, Dr Meller referred to in accompanying text.

117 Above n 11, per Mitting J in Zygmunt, referred to in accompanying text.

118 Ayres, I and Braithwaite, J Responsive Regulation: Transcending the Deregulation Debate (Oxford: OUP, 1992)Google Scholar, particularly ch 2.

119 S Bibas and RA Bierschbach ‘Integrating remorse and apology into criminal procedure’ (2004) 114 Yale LJ 85 at 104. The use of remorse in determining sentence is illustrated in eg R v Cooksley[2003] EWCA Crim 996; [2004] 1 Cr App R(S) 1 in relation to causing death by dangerous driving. Those who argue against the relevance of remorse to sentencing, eg Duff, R Punishment, Communication and Community (Oxford: OUP, 2001)Google Scholar, tend to argue that sentences are directed towards punishment of the crime, therefore the general character of the defendant is not relevant to this process. This critique, of course, has less weight in the context of professional discipline where the sanctions are not intended to be punitive in nature.

120 Addressing directly some of the concerns set out in the Bristol Royal Infirmary Inquiry, 2001 into children's heart surgery between 1984 and 1995: noting a mindset which meant that poor outcomes were easily explained away (see Conclusions, paras 2–4).

121 There is a tranche of literature on the importance attached to apologies from doctors when treatment goes wrong: eg Vincent, C et al ‘Why do people sue doctors?’ in A Study of Patients and Relatives Taking Legal Action (1994) 343 Lancet 1609 CrossRefGoogle Scholar at 1612. Research commissioned for the consultation paper Making Amends (DoH, 2003) which formed the backdrop for the NHS Redress Act 2006 suggested that while nearly 60% of victims of medical error desired an apology only 11% wanted financial compensation (p 75).

122 See Tavuchis, N on apology and membership in Mea Culpa: A Sociology of Apology and Reconciliation (Stanford: Stanford University Press, 1991), p 8 Google Scholar.

123 See eg D Gambetta Trust: Making and Breaking Cooperative Relations (Blackwell, 1989); Bradach, Jl and Eccles, Rg ‘Price, authority and trust: from ideal types to plural forms’ (1989) 15 Annual Review of Sociology 97 CrossRefGoogle Scholar.

124 See eg Setting Standards (Picker Institute, 2006) at 1.5 summarising interview and focus group based research and expressing the conclusion that patients no longer expect doctors to demonstrate moral excellence.

125 de Prez, P ‘Self-regulation and paragons of virtue: the case of “fitness to practise”’ 2002 10(1) Med L Rev 28 CrossRefGoogle Scholar.

126 Ayres and Braithwaite, above n 118, p 18.

127 See eg the sources cited in Tudor, S ‘Why should remorse be a mitigating factor in sentencing?’ (2008) 2(3) Criminal Justice and Philosophy 241 Google Scholar at 244.

128 In this respect the medical profession occupies a special position amongst professions, for the courts regard there as being a substantial public interest in maintaining the services of a good medic, but are less convinced that there is a public interest in conserving the skills of a good lawyer: CHRE v GMC & Southall[2005] EWHC 579 (Admin), per Collins J at [14].

129 Eg to conclude 90% of cases within 15 months: Annual Report and Accounts 2009 (GMC, 2010).

130 It is difficult to estimate the cost of the delay to the NHS as it is unclear how many doctors are suspended by their employer pending the outcome of a hearing. Annual statistics on numbers of NHS doctors suspended by their employer are collated by the National Clinical Assessment Service (see http://www.ncas.nhs.uk/publications/statistics). The mid-year report on these statistics for 2010/2011 tentatively suggests that suspensions involving the GMC or General Dental Council ‘could be accounting for more than half the total cost of suspensions/exclusions to the NHS’ (Use of NHS Exclusion and Suspension from Work amongst Doctors and Dentists (NCAS, 2011)). Unfortunately, these statistics currently draw no distinction between cases where the GMC is involved because there is a fitness to practise case pending and cases where the doctor has been suspended because the GMC has already decided against him/her and imposed a sanction.

131 Above n 2, at 25.48.

132 Eg Dr Khan (February) (2 years since conviction was insufficient time for remediation).

133 Dr O'Donoghue (September). Cf Dr Chithriki (October), case concluded 7-and-a-half years after incidents concerning a single patient. Finding of impairment made due to failure to show signs of remediation.

134 Dr Barton (January).

135 See Ayres and Braithwaite, above n 118.

136 The importance of the FTPP's role in revealing the truth is set out in CHRE v GMC and Solanke[2004] EWHC 944 (Admin) at [51] where the court admonished the GMC for allowing the lack of evidence from the patient at the centre of the misconduct allegation to cause it to abandon its role in ‘ensuring the true picture was exposed’.

137 See eg An Organisation with a Memory (DoH, 2000) preferring a ‘systems’ approach over a ‘person centred’ approach to analysing error and learning from adverse incidents.

138 See eg Dr Iceton (December) where following legal advice the doctor was assisted in his expressions of remorse and contrition to the FTPP's satisfaction.

139 Taft, L ‘Apology subverted: the commodification of apology’ (2000) 109 Yale LJ 1135 CrossRefGoogle Scholar.

140 Bibas and Bierschbach, above n 119, at 142.

141 See Dr Zaidi, above n 100; Dr Divakar, above n 101; and Dr Craig, above n 71.

142 See eg some of the empirical data cited in G McGivern et al ‘Medical regulation, spectacular transparency and the blame business’ (2010) 24(6) Journal of Health Organisation and Management 597 and the content of sites such as http://www.doctors4justice.net.

143 [2009] EWHC 1048 (Admin).

144 In any event, it has been suggested that ‘sentence discounting’ in fact punishes defendants exercising their right to jury trial: Darbyshire, P ‘the mischief of plea bargaining and sentencing rewards’ (2000) Crim LR 895 Google Scholar.

145 Above n 143, at [15].

146 Le Compte, Van Leuven and De Meyere v Belgium (1981) 4 EHRR1, successfully relied upon in Kulkarni v Milton Keynes Hospital NHS Foundation Trust[2009] IRLR 829 and Governors of X School v R (on the application of A)[2010] EWCA Civ 1; [2010] 2 All ER 555 to argue that proceedings which could effectively deprive C of his right to practise his profession (as opposed to allowing him to continue in present employment) attracted Art 6 protection.

147 While the author is not aware of any empirical research to support this at the present time, the minute of Dr Meller's fitness to practise hearing (involving a conviction for causing death by dangerous driving and referred to above at text accompanying n 42) record that ‘at no time was any negative feedback received from staff, stakeholders, patients or the public regarding [Dr Meller's] continuing to work, despite the facts of the case being known.’