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'Accumulated Misconduct' - rare but not impossible

Scholdlok v General Medical Council [2015] EWCA Civ 769In a successful appeal from the High Court, the Court of Appeal recently considered whether non-serious misconduct can support a finding of

Scholdlok v General Medical Council [2015] EWCA Civ 769

In a successful appeal from the High Court, the Court of Appeal recently considered whether non-serious misconduct can support a finding of impairment, and the comparatively unusual circumstances in which 'accumulated' examples of non-serious misconduct might collectively amount to an example of misconduct.

Dr S, an Orthopaedic Registrar appealed to the High Court against a decision made by the General Medical Council's fitness to practise panel ("the Panel") that her fitness to practise was impaired by reason of serious misconduct. The Panel imposed conditions on Dr S's registration for a period of 12 months. The High Court upheld the decision on initial appeal in 2013, but Dr S successfully challenged this at the Court of Appeal.

The allegations of serious misconduct related to Dr S's conduct and behaviour towards an Orthopaedic Technician at the Hospital as well as further charges of non-serious misconduct in relation to other colleagues. The court was required to consider whether the panel had (i) taken into account the incidents of non-serious conduct in its impairment decision, (ii) been right to find each serious misconduct charge proved and (iii) been right to find the doctor's fitness to practise impaired.

The Panel had accepted in its deliberations that only findings of serious misconduct could lead to impairment. The Court of Appeal agreed, but found that on a fair reading of the Panel's decision, that they had actually taken all the misconduct findings, both serious and non-serious into account when determining impairment. As a result, it was held that the matter would need to be sent back to the Panel to reconsider its impairment findings.

The Court also concluded that the six allegations of non-serious misconduct did not collectively accumulate to a finding of serious misconduct and that the Panel should not have applied these findings to their decision regarding impairment. The decision was set aside and the non-serious allegations were remitted to the Panel for reconsideration.   However, in obiter remarks Beatson and Vos LJJ noted that in unusual cases this could happen, as long as it was made clear in the charge or presentation of the case, making the doctor aware that any adverse findings could be taken together in this way.

In relation to the specific allegations of misconduct, the Court held that the Panel had erred. The Orthopaedic Technician's evidence was based on general allegations of inappropriate and rude behaviour rather than conduct on specific occasions as detailed in the charges. The findings in relation to the serious misconduct charges were found to have been wrong as key witness and expert evidence was ignored.

The obiter remarks of Vos and Beatson LJJ are of particular interest. While in the present case it was not possible to aggregate the examples of non-serious misconduct to support a substantive finding of misconduct, it seems that such an approach may be open to a Panel if, for instance, there were a particularly large number of findings relating to non-serious misconduct, particularly where the conduct is of a similar nature. While in the majority of cases, this may be a more suitable basis for a performance review, there may be (admittedly rare) circumstances where it may apply in relation to matters such as interaction with colleagues and patients, probity etc.

The appeal was allowed.

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