The boundaries of misconduct and how closely it must be linked to the professional’s calling were examined recently by the Court of Appeal in The Queen (on the application of Remedy UK Limited) v The General Medical Council [2010] EWHC 1245 (Admin).

As part of a policy called Modernising Medical Careers the Department of Health and others devised and introduced a new scheme for recruitment of junior doctors, and a new computerised system of making appointments for junior doctors’ training posts.  It was later generally recognised that the scheme was deeply flawed.   A Select Committee Report referred to the introduction of the new speciality training arrangements as “disastrous”.  Another report said that it had sparked the biggest crisis in the medical profession in a generation.

Remedy UK Limited was founded to represent doctors who had lost confidence in these training and employment reforms.  It sought to subject the Chief Medical Officer of Health, Sir Liam Donaldson, and Professor Sarah Thomas, who chaired the MTAS recruitment and selection steering group, to the GMC’s disciplinary processes to hold them accountable for what it perceived to be their responsibility in allowing the MTAS scheme to be adopted and implemented in circumstances which caused damage to doctors, patients and the standing of the profession.

The leading case on the meaning of misconduct was the judgment of the Privy Council in Roylance v GMC [2001] 1 AC 311 where Lord Clyde said that misconduct was a word of general effect, involving some act or omission which fell short of what would be proper in the circumstances.  Such misconduct (in the case of a doctor) was not limited to clinical misconduct but there must be a link with the profession of medicine.  Precisely what that link may be and how it may occur was a matter of circumstances.  But certain behaviour may constitute professional misconduct even although it did not occur within the actual course of the carrying on of the person’s professional practice, such as the abuse of a patient’s confidence, or the making of some dishonest private financial gain.  Another category of case where the professional misconduct complained about was removed altogether from the practice of medicine was where the doctor was guilty of immoral, outrageous or disgraceful conduct.

In Preiss v General Dental Council [2001] 1 WLR 1926 it was said that serious professional misconduct may take the form not only of acts of bad faith or other moral turpitude but also of incompetence or negligence of a high degree.  It may also be professional misconduct where a medical practitioner purporting to act or speak in such expert capacity went outside his expertise.  It was settled that serious professional misconduct did not require moral turpitude.  Gross professional negligence could fall within it.  Something more was required than a degree of negligence enough to give rise to civil liability but not calling for the degree of opprobrium that inevitably attached to the disciplinary offence.

In the present case Elias LJ derived the following principles from these cases:  (1) Misconduct was of two principal kinds:  First, it may involve sufficiently serious misconduct in the exercise of professional practice such that it could properly be described as misconduct going to fitness to practise.  Second, it could involve conduct of a morally culpable or otherwise disgraceful kind which may, and often would, occur outwith the course of professional practice itself, but which brought disgrace upon the doctor and thereby prejudiced the reputation of the profession.  Misconduct falling within that limb need not arise in the context of a doctor exercising his clinical practice, but it must be in the exercise of the doctor’s medical calling.  (2)  Conduct could properly be described as linked to the practice of medicine, even though it involved the exercise of administrative or managerial functions, where it was part of the day to day practice of a professional doctor.  Those functions included proper record keeping, adequate patient communication, proper courtesy shown to patients and so forth.  Usually a failure adequately to perform these functions would fall within the scope of deficient professional performance rather than misconduct, but in a sufficiently grave case, where the negligence was gross, there was no reason in principle why a misconduct charge should not be sustained.  (3) Misconduct may also fall within the scope of a medical calling where it had no direct link with clinical practice at all.  Meadow v GMC [2007] QB 462 provided an example, where the activity concerned acting as an expert witness where the doctor’s error was to fail to recognise the limit of his skill and expertise.

Poor judgment could not of itself constitute gross negligence or negligence of a high degree but it may in an appropriate case, and particularly if exercised over a period of time, constitute seriously deficient performance.

Action taken in good faith and for legitimate reasons, however inefficient or ill-judged, was not capable of constituting misconduct merely because it might damage the reputation of the profession.

In the present case the essential skills the medical practitioners brought to bear were not medical.  The making and implementation of government health policy was not a medical function, even where the policies in issue directly related to doctors and closely affected the medical profession.  The conduct must be of a kind which justified some kind of moral censure or involved conduct which would be considered disreputable for a doctor.  Bad judgment did not justify moral censure.  The conduct complained of was too remote from consideration of fitness to practise.  That was so whether cast in misconduct or deficient performance terms.