GMC should not consider doctor's record when ruling on misconduct
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《英国医生杂志》
Testimonials from patients and colleagues, and a doctor's previously unblemished career, should not play a part when the General Medical Council decides whether the doctor is guilty of serious professional misconduct. This was a landmark ruling from the Court of Appeal last week.
In the first acquittal of a doctor by the GMC to go to the appeal court, three judges ruled that evidence of a doctor's previous good record should be taken into account in mitigation when deciding what penalty to impose, but not when deciding whether a doctor has been guilty of serious professional misconduct.
The judges said the GMC's professional conduct committee was wrong to apply earlier decisions of the Privy Counsel—the body that used to deal with appeals by doctors from GMC orders erasing them from the medical register—that a previous good record could be taken into account in deciding that Dr Nigel Birkin, a paediatrician at Noble's Hospital in the Isle of Man, was not guilty of serious professional misconduct.
The GMC decided that Dr Birkin's treatment of baby Michael Boyle, whose hydrocephalus he failed to diagnose, and of another child, Amy Tasker, was substandard. But he was acquitted of serious professional misconduct on the basis of testimonials and previous practising history.
Michael's mother, Jennifer Campbell, sought judicial review of the decision in the High Court, where she initially lost. But she succeeded in the appeal court, where her lawyers cited comments from Dame Janet Smith in the fifth report of the Shipman inquiry.
Dame Janet had noted that it was "very common for the doctor to produce testimonials from patients and colleagues about his/her general abilities and character," which she said were potentially relevant to sanctions, but "quite irrelevant" to serious professional misconduct.
Lord Justice Judge, giving the court's judgment, said that from 1992 Dr Birkin had singlehandedly created a paediatric service in the Isle of Man and for 15 years had run the neonatal unit unaided. His career was "long and distinguished."
Lord Justice Judge, sitting with Lord Justice Longmore and Lord Justice Jacob, said the court agreed with Dame Janet that use of personal mitigation to decide whether there had been professional misconduct was wrong.
He said that Ms Campbell's stand had been vindicated. But the judges refused to send the case back to the GMC for rehearing, so the acquittal stands.(Clare Dyer, legal correspondent)
In the first acquittal of a doctor by the GMC to go to the appeal court, three judges ruled that evidence of a doctor's previous good record should be taken into account in mitigation when deciding what penalty to impose, but not when deciding whether a doctor has been guilty of serious professional misconduct.
The judges said the GMC's professional conduct committee was wrong to apply earlier decisions of the Privy Counsel—the body that used to deal with appeals by doctors from GMC orders erasing them from the medical register—that a previous good record could be taken into account in deciding that Dr Nigel Birkin, a paediatrician at Noble's Hospital in the Isle of Man, was not guilty of serious professional misconduct.
The GMC decided that Dr Birkin's treatment of baby Michael Boyle, whose hydrocephalus he failed to diagnose, and of another child, Amy Tasker, was substandard. But he was acquitted of serious professional misconduct on the basis of testimonials and previous practising history.
Michael's mother, Jennifer Campbell, sought judicial review of the decision in the High Court, where she initially lost. But she succeeded in the appeal court, where her lawyers cited comments from Dame Janet Smith in the fifth report of the Shipman inquiry.
Dame Janet had noted that it was "very common for the doctor to produce testimonials from patients and colleagues about his/her general abilities and character," which she said were potentially relevant to sanctions, but "quite irrelevant" to serious professional misconduct.
Lord Justice Judge, giving the court's judgment, said that from 1992 Dr Birkin had singlehandedly created a paediatric service in the Isle of Man and for 15 years had run the neonatal unit unaided. His career was "long and distinguished."
Lord Justice Judge, sitting with Lord Justice Longmore and Lord Justice Jacob, said the court agreed with Dame Janet that use of personal mitigation to decide whether there had been professional misconduct was wrong.
He said that Ms Campbell's stand had been vindicated. But the judges refused to send the case back to the GMC for rehearing, so the acquittal stands.(Clare Dyer, legal correspondent)