When is a doctor not a doctor?
Authors: Peter Gooderham, Richard Marks
Publication date: 18 Aug 2010
A recent High Court ruling has left Richard Marks and Peter Gooderham feeling that all doctors are no longer equal in the eyes of the General Medical Council
The recent High Court decision in the judicial review of the General Medical Council brought by RemedyUK raises a series of questions about the regulation of the medical profession and establishes important and controversial exemptions from disciplinary proceedings.
RemedyUK referred to the GMC two doctors who were involved at a senior level in the planning and implementation of the medical training application service (MTAS). One was the former chief medical officer for England. It was agreed by all parties that the implementation of MTAS in 2007 had been an unprecedented disaster, and RemedyUK asked that the doctors responsible be investigated for both misconduct and deficient professional performance.
The GMC response was to reject the referral. Its own guidance, Management for Doctors, which RemedyUK had relied on, was, they contended, applicable only to doctors concerned with the delivery of medical services to patients. The present case had “nothing to do with practice of medicine,” and the registrar considered that the allegations of misconduct could not “sensibly be said to impinge on their fitness to practise as medical practitioners.” The GMC formally closed the case by reason of “the doctor’s profession is incidental to the matter”—an outcome used by the GMC to cover situations such as minor disputes between neighbours, one of whom happens to be a doctor.
To the High Court
It seems remarkable that the regulators of the medical profession would consider that the doctors responsible for controlling the working lives of other doctors and the staffing of hospitals are outside its jurisdiction. Worryingly, this has been upheld in court.
In his judgment, Lord Justice Elias confirmed that these doctors were not in positions sufficiently close to clinical practice as to warrant the GMC’s jurisdiction, and made reference to several precedent cases. He conceded that in Roylance v GMC Lord Clyde had found a “sufficiently close link with the profession of medicine” to support the striking off of a doctor who had been working as a hospital chief executive.
But in the present case his Lordship ruled that doctors acting in these administrative roles were exempt. The court found that the doctors’ functions were “too remote from the practice of medicine” to be subject to the GMC’s procedures. This was summarised as: “The making and implementation of government health policy is not a medical function, even where the policies in issue directly relate to doctors and closely affect the medical profession.”
This seems to render current GMC guidance in Management for Doctors largely worthless. The judge also accepted the argument that it would be inappropriate for the GMC to assess the performance of doctors in this sphere of work because its medical assessors would need to possess “the requisite special skills to pass the appropriate judgment.” He stated that such an assessment could not be made in this case. And finally, he ruled that there could be no finding of misconduct for bringing the profession into disrepute, since the alleged conduct of the doctors had not justified moral censure or been disreputable.
This judgment carries important and worrying implications.
Firstly, it seems that doctors in some managerial and government roles may now claim exemption from disciplinary procedures in all aspects of their work. If they were to give incorrect advice or incompetently administer other issues—for example, in the organisation of on-call rotas or in the management of an infectious disease epidemic—then they could simply assert that they were “implementing government policy.” And when revalidation is implemented, the responsible officer in each trust will be acting as administrator, not doctor, which arguably is too far removed from clinical practice to merit the GMC’s attention (although paradoxically responsible officers need to hold a licence to practise). Another ramification is in the new era of general practitioner commissioning, where general practitioners are being asked to act as both doctors and budget holders and accountants. Plans to transfer the responsibility for commissioning most NHS activity to GPs will be more attractive to doctors if there is no longer accountability to the GMC. We do not think this is necessarily in the public interest.
Secondly, the interpretation of the phrase “the doctor’s profession is incidental to the matter” has been made less easy to understand. It seems now that two doctors exercising huge influence over the delivery of health care are immune from GMC proceedings because their role is insufficiently close to patients. But this assertion (which is disputed by RemedyUK) cannot be reconciled with another GMC case, upheld by a High Court judge, where it was ruled that a doctor who was no longer engaged in medical practice should nevertheless be investigated for possible misconduct after she had written something on a blog unrelated to medicine. This is completely inconsistent. Is there one rule for doctors working for the government, and a different rule for doctors who, in a manner wholly unrelated to clinical practice, express their opinions? Doctors and their regulators need new and explicit guidance on what sort of actions away from their clinical work can fall within the scope of fitness to practise.
Thirdly, it seems that difficulty in finding a skilled medical assessor is now a valid reason to reject a fitness to practise inquiry at the registrar stage. We suggest that opening this line of defence could have wide reaching ramifications, and we believe that in any event it should be possible to find suitable assessors if there is sufficient will to investigate properly.
Fourthly, the ruling that misconduct that brings the profession into disrepute depends on the motives and intentions of the doctor is likely to be a frequently used defence, and creates a new loophole that will always be hard to interpret properly.
Immunity for some?
RemedyUK did not fight this case for punitive or vindictive reasons. It wanted to establish the principle that all doctors, in all fields, were accountable for their professional activities. But the case has backfired so far and has created case law to give doctors in administration immunity, no matter how poor their performance. We suggest that this is wrongly decided, undesirable, and illogical. It gives inappropriate protection to bad doctors if their mismanagement or bad advice leads to significant shortcomings or errors, whereas those harmed by these decisions are left without an effective remedy. The undesirability of this was acknowledged by the Master of the Rolls in General Medical Council v Meadow. It may suit the medical and political establishment but does not work in the interests of doctors or their patients. As Cameron-Perry said of another judgment of that nature: “I can think of few decisions that are—to their very core—as odious, unsound, and unsafe as this one.”
Competing interests: PG is a retired medical practitioner and a supporter of RemedyUK. RM is head of policy at RemedyUK and a member of council, Royal College of Anaesthetists.
- The Queen (on the application of Remedy UK Ltd.) v General Medical Council  EWHC 1245 (Admin). [Link] .
- RemedyUK. GMC case—the papers have been served. 14 March 2009. [Link] .
- GMC. Management for doctors . 2006. [Link] .
- Roylance v GMC AC 311. [Link] .
- Department of Health. Equity and excellence: liberating the NHS . 2010. [Link] .
- The Queen on the application of Rita Pal v General Medical Council  EWHC 1061 (Admin) CO/7386/2007. [Link] .
- General Medical Council v Meadow  EWCA Civ 1390 at 17. [Link] .
- Macfarlane and Another v Tayside Health Board (Scotland)  UKHL 50. [Link] .
- Cameron-Perry JE. Return of the burden of the “blessing.” New Law Journal 1999;149:1887.
Peter Gooderham lecturer in law and bioethics
School of Law, University of Manchester, Manchester
Richard Marks consultant anaesthetisthead of policy, RemedyUK London