The good, the bad and the dishonest doctor: the General Medical Council and the ‘redemption...

The good, the bad and the dishonestdoctor: the General Medical Counciland the ‘redemption model’ of fitnessto practiselest_203 591..614

Paula Case*Lecturer in Law, University of Liverpool

The ‘elusive’1 concept of ‘impairment’was introduced into the General Medical Council’sFitness to Practise Procedures in 2002. Its function was ostensibly to bring all forms offitness to practise allegations against doctors under a unifying concept and thereby reduceprocedural complexity. This paper strives to illuminate the application of ‘impairment’of fitness to practise with reference to a year of fitness to practise decision making bythe General Medical Council (GMC). It concludes that impairment has brought with it aredemptive style of resolving matters of professional discipline which brings signifi-cant benefits to doctors, the patient population and society as a whole, but which canalso encourage a contrived exchange of remorse, insight and remediation with furtherimplications for professional integrity and truth.

INTRODUCTION

The regulatory body for doctors, the General Medical Council (GMC), recentlypublished proposals to reform its adjudication procedures. These reforms are aresponse to the demise of the ill-fated Office of Healthcare Professions Adjudicator(OHPA), the body set up to address concerns that GMC resolution of complaintsagainst doctors lacked independence.2 The GMC’s proposals recognise that ensuringdoctors’ fitness to practise is the most ‘contentious and high profile’ aspect of theGMC’s work, yet the application of the linchpin concept of ‘impairment’ in fitness topractise cases has been the subject of surprisingly little academic comment or research.The Medical Act 1983, s 35 (as amended)3 requires all disciplinary charges againstdoctors which reach a GMC fitness to practise hearing to be assessed in terms ofwhether the practitioner’s fitness to practise is ‘impaired’. The introduction of theconcept of ‘impairment’ was designed to avoid the compartmentalisation of fitness to

* With thanks to Professor Michael Dougan for comments on an earlier draft. [email protected]. 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 Dealwith Cases at the End of an Investigation (GMC, 2011). OHPA had been established by s 98 ofthe Health and Social Care Act 2008 as a result of strongly worded recommendations of theFifth 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.

Legal Studies, Vol. 31 No. 4, December 2011, pp. 591–614DOI: 10.1111/j.1748-121X.2011.00203.x

© 2011 The Author. Legal Studies © 2011 The Society of Legal Scholars. Published by Blackwell Publishing, 9600Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA

practise allegations and remove the delay and cumbersome procedural complicationsthat maintaining four conceptually distinct channels of discipline (serious professionalmisconduct; seriously deficient performance; deficient performance; and health con-cerns) had produced.4 No definition of ‘impairment’ is to be found in the statute,5

merely a declaration that impairment of fitness to practise may be found only by reasonof the doctor’s misconduct, criminal conviction or caution, deficient professionalperformance, adverse health or a determination by another regulatory body to the effectthat fitness to practise is impaired.6 Dame Janet Smith in the fifth report of the ShipmanInquiry had predicted that the term ‘impairment’ was likely to cause more problems ofdefinition and identification than the preceding terminology.7 She had also expressedconcern that the question of whether fitness to practise was ‘impaired’was meaninglessin the context of complaints relating to misconduct and criminal convictions unrelatedto clinical competence.8 The GMC’s Fitness to Practise Panel (FTPP) now uses DameSmith’s summary of the recurrent features of unfitness to practise as a benchmark.Accordingly, a doctor whose fitness to practise is ‘impaired’ either:

a) is a risk to patients;b) has brought the profession into disrepute;c) has breached one of the fundamental tenets of the profession; ord) the doctor’s integrity cannot be relied upon.9

In an attempt to illuminate the application of ‘impairment’, this paper proceedsto analyse its application across one year of FTPP decision making by the GMC.The analysis raises problems specific to each of the ‘heads’ of impairment and thenconcludes with a further analysis of themes common to all four heads. In particular,the special emphasis placed by the FTPP on the practitioner’s expressions of remorse,contrition and remediation in determining the existence of ‘impairment’ is explored.The paper concludes with reflections on the impact of this construction of ‘impair-ment’ on the integrity of the regulatory scheme. First, however, a brief outline offitness to practise hearings is provided.

1. THE CURRENT LANDSCAPE OF FITNESS TO PRACTISEDECISION MAKING

(a) The four steps of ‘fitness to practise’ hearings

The new terminology of assessing whether a doctor’s fitness to practise is ‘impaired’has been applied in a sequential four-step process. First, the FTPP must ask whetherthe alleged facts which form the substance of the complaint have been proved on thebalance of probabilities10 (step one); secondly, do those facts which have been proved

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 amongstregulators of the health professions and transforming the standard applicable to FTPP hearingsfrom the criminal standard to the civil standard.

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to the required standard amount to misconduct or deficient professional performance?(step two); thirdly, in light of all the facts, is the practitioner’s fitness to practise‘impaired’? (step three); and finally, if impairment is found, what sanction ought to beapplied? (step four). In cases of ‘misconduct’ the issues of whether misconduct hasbeen established and whether fitness to practise is ‘impaired’ must be consideredseparately.11 A finding of misconduct will not, therefore, automatically result in afinding of impairment and it is the finding of ‘impairment’ (rather than the misconductitself) which unlocks the sanctions set out in s 35D of the Medical Act. Mitting J inZygmunt v GMC stated, however, that perhaps in the great majority of cases, a findingof impairment will (automatically) follow a finding of misconduct.12 Mitting J there-fore ascribed a largely descriptive function to the concept of impairment which, as willbe argued later, tends to understate the utility of the concept as it is applied in practice.

(b) Meaning of ‘impairment’: looking forward not back

For step three of the fitness to practise hearing, the concept of ‘impairment’ requiresthat the FTPP should focus not solely upon the incident(s) which gave rise to thecomplaint and whether sanction should follow. Rather, the FTPP should evaluate thedoctor’s conduct in the round, including evidence of the doctor’s performance prior toand subsequent to the conduct in question.13 This exercise therefore involves lookingforward not back,14 and taking into account the extent to which the practitioner hasgained insight into their shortcomings; the extent to which the issues raised areremediable; any attempts made by the practitioner to remediate their poor practice ormisconduct; and the risk of recurrence.15 This is a reflection of Dame Janet Smith’sreading of s 35D(2) of the Medical Act which gives the FTPP the power to impose asanction where there is a finding that the doctor’s fitness to practise is impaired (ie atthe time of the hearing).16

11. Zygmunt v GMC [2008] EWHC 2643 (Admin) affirmed in Cohen v GMC [2008] EWHC581 (Admin). It may be that the same facts which give rise to the finding of misconduct are alsosufficient to give rise to a finding of impairment and that these two issues do not need to beformally separate ‘stages’ in the decision making process, although it is advisable that theirconsideration 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 heseems to have assumed this to be the case. It may have been due to the fact that although statutemoved from a test of ‘serious professional misconduct’ to one of ‘misconduct’, the courts haveresisted suggestions that a lower threshold is to be applied and have reverted to the old standardof serious misconduct: eg Meadow v GMC [2006] EWCA Civ 1390; [2007] 1 QB 462at [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 JusticeMcCombe stated, at [44]: ‘. . . it must behove a FTP Panel to consider facts material to thepractitioner’s fitness to practise looking forward and for that purpose to take into accountevidence 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 isrelevant 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 misconducthad 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.

The good, the bad and the dishonest doctor 593


The 2009 judgment in Yeong v GMC suggested that for misconduct other thanclinical errors or incompetence, efforts at remediation would be of muted signifi-cance.17 Conduct characterised by dishonesty or intentional wrongs are considered tobe particularly ‘egregious’18 and, consequently, it will be more difficult to persuade theFTPP that the doctor’s fitness to practise is not impaired, regardless of any well-meaning gestures in the interim. It is clear from the analysis of FTPP decisions belowthat even in non-clinical cases, the potency of remediation and insight are considerablewhen it comes to assessing the practitioner’s current fitness to practise.

(c) Professional sanctions and the significance of erasure

S 35D of the Medical Act 1983 sets out the sanctions available to the FTPP whereimpairment is found as: erasure, suspension (for a maximum of 12 months, althoughrenewable)19 or a direction that conditions be imposed upon the doctor’s registrationfor up to 3 years. Despite its absence from s 35D, a ‘stand alone’ finding of impairmentis treated as a sanction20 and it is also possible to accept written undertakings from thedoctor concerned which will appear on the List of Registered Medical Practitioners(LRMP).21 Finally, where the hearing concludes without a finding of ‘impairment’, theFTPP may nevertheless issue a warning which remains on the doctor’s record for 5years.22 The use of erasure is the source of particular comment in this paper as itrepresents the pinnacle of the FTPP’s enforcement powers, being reserved for caseswhere the doctor’s conduct is regarded as ‘fundamentally incompatible’ with regis-tration as a medical practitioner. On the assumption that professional sanctions havea communicative or expressive function, the message delivered by a direction forerasure is that this conduct will not be tolerated. In other words, the conduct demon-strated is either not capable of remediation or has not been remedied on the facts. Forthis reason, the author uses the incidence of erasure across different types of cases asa broad ‘indicator of non-remediability’. In the FTPP hearings studied in this paper,erasure was used in 22% of the cases where erasure was an available outcome.23 Thisis used as a benchmark against which to assess the incidence of erasure for particularkinds of misconduct.

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 atreview hearings.20. See eg Dr Gunasekera, Dr Kashyap and Dr Le Roux (all August) – a finding of ‘impair-ment’ 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 thepublicly 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 recordedon the register but details of which were available on request. Warnings were introduced as partof the 2002 reforms and first used in 2004. They can be imposed by the FTPP, by CaseExaminers 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.



2. ANALYSIS OF FITNESS TO PRACTISE HEARINGS:AUGUST 2009 TO JULY 2010

The second part of this paper draws from an analysis of fitness to practise decisions ascaptured in minutes covering one year’s worth of FTPP hearings.24 A total of 371 caseswere logged, covering the period from August 2009 to July 2010 inclusive. Thisdataset includes hearings before FTPPs and also a small number of hearings before theInvestigation Committee.25 It also includes review hearings before the FTPP whichhad been ordered to take place towards the end of a period of suspension/conditionswhere the doctor’s fitness to practise was to be re-assessed in the light of subsequentconduct.

TYPES OF CASE: THE ‘SMITH’ FORMS OF POTENTIAL IMPAIRMENT

The following sections provide an analysis of subsets of cases from the 371 fitness topractise decisions in the dataset. They are grouped broadly according to the forms ofconduct which might give rise to a finding of impairment as identified by Dame JanetSmith (see above). These categories are adopted for the purposes of this paper,although it should be noted that in practice they overlap so that a single case maydemonstrate all four forms of impairment.

(a) The doctor presented a risk to patients: concerns relating toclinical performance

Although this descriptor of ‘impairment’ is not necessarily confined to cases whereclinical failings have been identified, this section of the paper looks exclusively atcases concerning primarily poor clinical practice. Out of 371 cases forming the datasetin this paper, 162 cases (nearly 45%) concerned primarily clinical failings.26 Erasurewas ordered in 23% of these cases but tended to be reserved for cases marked by apattern of dishonesty, a complete failure to cooperate or engage with the regulator (forexample, persistent failures to reply to GMC correspondence or invitations to attendperformance assessment) or ‘attitudinal problems’.

Good doctor, bad day – poor practice in relation to a single patientOne of the most interesting themes in this group of cases concerned failures in thetreatment of one patient. Although case law confirms that a single incident or failuresin respect of one patient can still equate to misconduct or impairment,27 errors inrelation to a single patient without further aggravating factors rarely gave rise to a

24. The General Medical Council publishes 12 months of FTP decisions on its website,available at www.gmc.org.uk.25. At these hearings, the Investigation Committee is only empowered to decide whether toimpose 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 clinicalpractice but were nevertheless clearly work-related (this included forms of unacceptablebehaviour 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.



finding of impaired fitness to practise.28 Nevertheless, the minutes of two highlypublicised cases serve to illustrate the extent of insight and remediation that might berequired by the FTPP before a finding of impairment could be avoided. In the case ofDr Ikwueke, the FTPP signalled that remediation alone would not suffice to avoid afinding of impairment in a case of clinical deficiency. Dr Iwueke appeared before theFTPP in connection with the tragic death of the toddler widely known as ‘Baby P’.29

While the immediate cause of P’s death was child abuse, it had also been attributed toa raft of missed opportunities by police, social workers and hospital doctors to initiatechild protection procedures. As P’s General Practitioner, Dr Ikwueke was consideredto be guilty of a ‘series of failings’ given that, despite misgivings about P’s bruises, hehad neglected to share this information or identify child abuse as a possibility. Afinding of impairment was made in Ikwueke’s case despite extensive remediation.30

This was largely on the ground that he had developed only limited insight, still notregarding himself as to blame for the circumstances surrounding Baby P’s death.

In another high profile case of misconduct against a backdrop of strong evidence ofcontrition and remediation, Dr Gurun was found guilty of misconduct in removing hispatient’s healthy kidney in error, but was nevertheless determined to be fit to return topractise. On realising the error, he had immediately sought the best help for hispatient, had been candid with the patient’s family, did not attempt to blame others forthe event and accepted full responsibility for the error (notwithstanding that on thefacts, the error occurred in the context of a ‘combination of system errors’). From theregulator’s perspective this was a single error which demonstrated no suggestion ofdishonesty or lack of probity and so fell within the category of most easily remediatedconduct. For the media, however, the case was a signal of regulatory lenience.31

The FTPP minutes show that relatively minor incidents of misconduct can result ina ‘ratcheting up’ of the response when accompanied by uncooperative behaviour in theinterim. In a case of error in relation to a single patient which did not suffice toproduce a finding of impairment, the accompanying dishonesty in attempting to covertracks did give rise to impairment.32 Similarly, where errors related to a single patient,but were accompanied by a failure to engage in the regulatory process, the totality ofthe doctor’s conduct was regarded as evidence of impairment resulting in a 12-monthsuspension.33 Failures in respect of another patient exhibited a ‘wide and continuingcourse of conduct’ and demonstrated a cavalier attitude along with unresponsivenessto the regulatory process.34 This case was concluded with erasure. In another case,concerns essentially regarding a practitioner’s record keeping were initially met withthe sanction of 3 months’ suspension. The case was concluded with the sanction oferasure due to the aggravating impact of the doctor’s failure to address the complaintsagainst him.35

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 ofsurgery protocols.31. See eg ‘Surgeon removed wrong kidney from cancer patient – but doesn’t even receive awarning’ Scotsman 25 February 2010; ‘No action against “wrong kidney” surgeon’ available athttp://news.bbc.co.uk/1/hi/scotland/8534484.stm.32. Dr Baloch (October). This mirrors the similar finding in Pillai v GMC [2009] EWHC1048 (Admin).33. Dr Brice (October).34. Dr Cason (August).35. Dr Kijewski (November).



(b) The doctor had brought the profession into disrepute:criminal convictions, charges and cautions

100 of the 371 cases reviewed involved an allegation that the doctor had beencautioned or convicted in relation to a criminal offence. Of these cases, 27% resultedin erasure, demonstrating a slightly higher than average incidence of erasure.36 Whatis perhaps most notable about these cases is that most of the offences had no directrelationship with practitioners’ medical work but included driving offences, sexualoffences (including rape, soliciting a prostitute or possessing pornographic images ofchildren), possession of illicit drugs and assault (including domestic violence). DameJanet Smith’s views, adopted in Zygmunt v GMC, attempted to draw these cases underthe mantle of impairment because they ‘brought the profession into disrepute’.37 Caselaw suggests that this kind of misconduct requires a considerable weight of evidencefor there to be a conclusion that fitness to practise is not impaired.38

MOTORING OFFENCES

28 of the 371 cases related to motoring offences and this constituted the most com-mon form of criminality in this dataset.39 The forms of offending included: drivingunder the influence of alcohol; dangerous driving; refusing to provide a sample for abreathalyser test; driving without an MOT or without third party insurance or drivingwhile disqualified.40 Rarely was a risk to patients identified (except in cases ofdoctors driving to work while under the influence of alcohol), and the concern waslargely therefore that the doctor’s criminal conduct had ‘brought the profession intodisrepute’.

i. motoring offences and ‘impairment’

Cases involving motoring offences which avoided a conclusion of ‘impairment’featured findings that the doctors had expressed genuine remorse; that there had beenmore than 2 years since the conviction without any recurrence of the condemnedbehaviour; and that the doctors had shown full insight into the gravity of theiroffence.41 Attempts at remediation which went towards a finding that fitness to practisewas no longer impaired included a doctor stopped for drink driving who had sincestopping drinking altogether. That is not to say that all motoring offences werenecessarily remediable. In the case of Dr Meller, insight and remorse had been

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, theGMC’s Case Examiners had resolved that the case against the doctor should be resolved byissuing a warning and the doctor had challenged this finding, generally arguing that a warningwould 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 awarning 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).



demonstrated (by full acceptance of responsibility and efforts to apologise to thebereaved family) in relation to a conviction for causing death by dangerous driving,but did not suffice to avoid a finding of impairment. The conviction had ‘tarnished’the reputation of the profession and therefore fitness to practise remained impaired.Exceptionally, however, the FTPP explained that the usual sanction of a lengthysuspension42 should not apply in this case; the finding of impairment was, in itself,sufficient sanction.

In cases of motoring offences, use was frequently made of the ‘warning’. This isfurther demonstration of the fact that the commission of a motoring offence by itselfoften does not give rise to a finding of impairment, as warnings are only availablewhere the conduct falls below the threshold of ‘impairment’. Although not categor-ised as a ‘sanction’ by statute (as it does not constitute a ‘restriction on registration’)the warning serves as a mid-level sanction given that it appears on the publiclyaccessible sections of the LRMP for 5 years. While a significant number of motor-ing offences avoided findings of impairment, there were many that did not. In thesecases, the FTPP tended to cite evidence of an attitudinal problem, lack of fullinsight or an attempt to conceal the offence from the regulatory body. The passageof 6 years, accompanied by the fact that there had been no recurrence of theoffence, did not suffice to avoid a finding of impairment.43 Rather, the doctor had todemonstrate ‘insight’ into their offending which required not only an appreciationthat a conviction had grave implications for a doctor’s registration, but also evidenceof recognition of the seriousness of the conviction itself.44 In a number of thesecases, there had been a failure to report the caution, charge or conviction to theGMC promptly, a failure to report the matter on an application for first registrationwith the GMC or a demonstration of uncooperative behaviour, each of which isdefined as a breach of professional norms.45 Another example of this use of normsset out in professional guidance as a regulatory lever was demonstrated by articu-lating motoring offences as posing a threat to human life and thereby a contraven-tion of the principles laid out in Good Medical Practice: ‘to justify that trust youmust show respect for human life.’46 With the aid of these levers, conduct whichtakes place in the realm of private conduct becomes more clearly a matter forprofessional discipline, and it is these cases of non-cooperation or non-disclosurewhich often explained the application of the more severe sanctions against doctorswho faced allegations unconnected with patient care.

ii. sanction: an indicator of remediability?

Thirteen of the motoring offence cases resulted in suspension and three were con-cluded with the sanction of erasure. In each of these cases where a direction for

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 68requires doctors to cooperate with any formal investigation of complaints made against them orothers.46. Eg the case against Dr El Alami (February) relying on the first paragraph of Good MedicalPractice.



erasure was ordered, there were significant aggravating factors47 and the convictionsfor drink driving appeared to be symptomatic of deeper problems, such as a pattern ofrisk taking behaviour. The ‘ratcheting’ effect noted in the context of clinical deficien-cies was also evident here. For example, in the case of Dr Williams, what started outas convictions relating to his private life became a matter for erasure by virtue of thedoctor’s failure to submit to the authority of the regulator. The original sanction of 6months’ suspension was substituted with erasure. This step was taken because of hissubsequent conduct in continuing to work as a GP despite being suspended by theinterim orders panel, leading to the conclusion that he had displayed ‘flagrant disre-gard for the regulatory system’.48

Six other cases dealt with by the FTPP concerned drink driving and were met withthe maximum period of suspension.49 In most of these cases, the convictions appearedto serve as an indicator that the doctor had alcohol dependency issues and indeed, insome instances, the doctors concerned had attended work smelling of alcohol. Othercommon features were, again, a pattern of criminal behaviour or allegations of relatedmisconduct, the ‘misconduct’ being the doctor’s failure to report their arrest orconviction to the GMC.50 Such misconduct tended to demonstrate ‘impairment’ as itcaused the FTPP to reflect that the doctor’s integrity could not be relied upon.51 Thesecases taken together suggest that in most cases (excepting Meller), it was not theoffending which was crucial to the assessment of impairment, but rather the collateralconduct which either confirmed or rebutted a presumption of impairment arising fromthe offence.

SEXUAL OFFENCES/NON-CONSENSUAL SEXUAL MISCONDUCT52

i. sexual offences and ‘impairment’

A significant feature of the sexual offending cases assessed by the FTPP in thisanalysis was that there was rarely any recognition of the possibility of remediation.53

Here Mitting J’s words hold true and a finding of impairment does generally followthe finding of misconduct or offence. The FTPP minutes reflect this, for example, inthe case of a doctor recently accused of sexually motivated examinations of a patient

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 systemincluding working while suspended (Dr Williams, February) and a pattern of offences includingbreaches of the peace, being drunk and disorderly and concealing status as doctor from thepolice (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 discussedlater 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 influenceof 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 assistancein finding that acts of accessing child pornography ought to result in erasure.



several years ago. The FTPP was ‘of the view that the manipulative and sexuallymotivated behaviour demonstrated . . . is not easily remediable, if at all.’54 The issue ofwhether fitness to practise is impaired is despatched with swiftly in these cases, beingeither admitted by the defendant,55 or being assumed from the fact of the convictionitself.56 This assumption of non-remediability is also built into the GMC’s IndicativeSanctions Guidance which refers to erasure as the appropriate sanction for ‘sexualmisconduct’57 or for cases where the doctor’s name appears on the Sex OffendersRegister.58

Notwithstanding the above, there were indications that some forms of non-consensual sexual misconduct were considered remediable. In fact, there were a fewcases which indicated that sexual misconduct directed towards colleagues rather thanpatients had been regarded as remediated following a 12-month suspension.59 At areview hearing, in a case of inappropriate sexual touching and conduct towards ajunior colleague, Dr Rao’s impairment was regarded as nullified by his apology,attendance at diversity and equality courses and significant attempts to keep medicalknowledge up to date during his suspension. The FTPP’s acceptance of this asevidence of a lack of impairment might be criticised for accepting the doctor’sconstruction of the incident as a work relations issue/equality issue rather than aspredatory sexual behaviour. In Dr Azim’s case, inappropriate touching and sexualcomments towards colleagues were described as an ‘inexplicable aberration in anotherwise unblemished career’ despite the fact that the complaints had been broughtby five nursing assistants. At a review hearing, Dr Azim’s impairment was regarded asnullified by apologies, attending courses in ethics, diversity, communication and anintroduction to ‘maintaining professional boundaries’. The salutary effect of an inter-nal NHS inquiry and the GMC proceedings were also considered to make it unlikelythat he would behave improperly towards women again.

The cases of Rao and Azim are of interest for they demonstrate a number ofdistinctions from the other cases; first in that no prosecution appears to have beenpursued in these cases, perhaps explaining the relative lenience with which they weretreated. Secondly, one of the cases was explicit in confirming that a distinct approachis taken to what most would categorise as sexual assaults against junior or lower rankcolleagues rather than patients.60 In neither of these cases did the FTPP suggest thatsexual misconduct towards colleagues might indicate a latent risk to patients. Thiscontrasts with the approach taken to dishonesty where the FTPP and the courts haveboth demonstrated an assumption that dishonesty in private affairs is likely to spillover into the domain of patient care.61

54. Dr Johnson (July).55. Dr Keerthy (September).56. Eg in the case of Dr Tangotra (October) – the FTPP had ‘no doubt’ that two convictionsfor 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 apatient 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 beendifferent 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 bedishonest in her private life ‘jeopardises patient safety’ because she cannot be trusted to be



ii. sanction: an indicator of remediability

The virtual non-remediability of sexual offending was manifested by the fact that itwas this type of offence which met most frequently with the sanction of erasure. Ofthe nine cases which involved conviction for a sexual offence62 only two doctorsescaped the sanction of erasure (representing a 78% incidence of erasure as comparedwith a 22% incidence of erasure across the whole dataset). Both cases where erasurewas not deployed concerned the offence of ‘soliciting a prostitute’ which was regardedas being ‘at the lower end of criminality’.63 The remaining cases which all involvedeither sexual assaults (including rape) or possession of child pornography were metwith erasure, the conclusion being that such conduct was ‘fundamentally incompat-ible’ with being a registered practitioner. None of the doctors in the child pornographycases attended their FTPP hearing, possibly signalling that they knew how their casewould be concluded.64 In all of these cases, the FTPP employed the ‘disrepute’ limb ofimpairment,65 but additionally made reference to issues of professional duty in respectof children.66 Referring to para 25 of Good Medical Practice (which requires doctorsto ‘safeguard and protect the health and well-being of children’) the GMC constructsa professional duty not to access child pornography in their professional or privatelives. As with the motoring offences therefore, the GMC’s guidance for doctors isapplied imaginatively so as to create the leverage with which to define personalconduct as breach of a professional norm, and therefore a matter of professionaldiscipline. This practice undoubtedly serves to underline the legitimacy of disciplinaryproceedings, but is strictly unnecessary given the latitude with which misconduct isdefined in the case law.67

(c) The doctor breached a fundamental tenet of the profession:maintaining boundaries

i. maintaining boundaries and ‘impairment’

Many forms of misconduct might be regarded as breaching fundamental tenets of thetherapeutic relationship, but the category of conduct fitting this description whichoccurred most frequently in this dataset of FTPP cases (and which does not appearelsewhere in this paper) was the failure to maintain professional boundaries with

truthful in a professional context, and also the judgment in Bradshaw v GMC [2010] EWHC1296 (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 broughtforward 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 DentalCouncil and Fleischmann [2005] EWHC 87 (Admin) where Justice Newman rejected a12-month suspension for offences of child pornography as ‘unduly lenient’ and failing to takeaccount 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) andDr Manley (November).67. The courts have always preserved regulators’ prerogative to take action against ‘disgrace-ful 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.



patients.68 The pursuit of a personal relationship with a patient, even a non-sexual one,is an emotive fitness to practise issue, a dominant theme in the FTPP narratives beingthat the doctor has put his personal gratification above the needs of the patient.Constructing the relationship in this way signifies that the doctor has breached thecardinal rule of medical professionalism: that of ‘putting the patient first’. The rela-tionship is therefore quite literally a ‘betrayal’ of the doctor’s role and carries far morestigma and moral opprobrium than a clinical error or deficiency.

The Yeong case mentioned above, which was directly concerned with doctor/patient ‘affairs’, signalled that this type of misconduct would be less amenable toremediation than purely clinical failings.69 The seriousness with which the FTPPtreated relationships with patients is demonstrated by the case of Dr Emmanuel whowas described as ‘abusing his position as a doctor’ by pursuing a relationship with apatient, despite the fact that she was no longer his patient at the relevant time.70 It isalso reflected in the fact that ‘impairment’ was identified and erasure was ordered intwo cases involving what may on the evidence have been ‘friendships’ with vulnerablepatients (as opposed to sexual relationships).71 In one of these cases, a finding ofimpairment was made on the basis that the doctor continued to deny the allegation thatthe relationship became a sexual one.72 This denial represented a lack of insight on thepart of the doctor.

Here, as in other areas, lack of insight into the seriousness of the misconduct isfrequently cited as a reason for a finding of impairment.73 However, even whereinsight is demonstrated, it is less likely to result in avoidance of the verdict of impairedfitness to practise. This is because a substantial sanction is generally considerednecessary for this type of misconduct, as the need to preserve public confidence isascendant.74


The courts have shown some leniency in cases of doctors having relationships withpatients, endorsing erasure as the usual but ‘not inevitable’75 sanction, and repeatedlyurging that a less severe penalty should be applied in specific cases of relationships

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: ‘theefforts made by the medical practitioner . . . to address his behaviour for the future may carryvery much less weight than in a case where the misconduct consists of clinical errors orincompetence’ 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 yourlimited insight and your continued denial, the Panel is of the view that you still constitute a riskto patients.’74. Evidenced in the cases of Dr Hickson (12-month suspension despite insight beingdemonstrated) (January) and Dr Pultar (November). See also Wentzel v General MedicalCouncil [2004] EWHC 381 where the importance of maintaining public confidence in suchcases was regarded as more important than the public interest in retaining a good doctor and thedoctor’s interests in being allowed to continue to practice, at [25].75. Bevan v General Medical Council [2005] EWHC 174 (Admin) at [20].



with patients.76 Suspension would suffice where circumstances suggested someleniency would be appropriate,77 although conditions would likely be ‘too lenient’ ina ‘bad’ case of pursuing a relationship with a vulnerable patient.78

In the 2009–2010 dataset, there were nine cases concerned with doctors havingrelationships with their patients and a further two cases concerning the crossing ofprofessional boundaries with patients.79 Within this small sample of cases were anumber of indicators that the FTPP was reluctant to operate a policy of ‘leniency’.Firstly, taken together, these cases demonstrated a particularly high incidence oferasure, with 56% of cases involving relationships with patients being subject to thissanction. Secondly, in a case in which the patient concerned alleged that she did notfeel vulnerable as a result of the relationship, a 12-month suspension was never-theless imposed despite the fact that the doctor had not used his position to pursuea relationship (the parties had been known to each other socially for some time) andthe FTPP had accepted that the doctor had insight into his misconduct.80 Whatappears to be a very strict approach to relationships with patients may in part be dueto the GMC’s Indicative Sanctions Guidance which treats relationships withpatients as an aspect of ‘sexual misconduct’ and fails to clearly distinguish ‘con-sensual’81 sexual conduct with patients from non-consensual conduct such as sexualassault.82

(d) The doctor’s integrity could not be relied upon:is there room for dishonest doctors?

Good Medical Practice defines honesty and probity as central to medical profession-alism83 and therefore, as with breaching the proper boundaries between doctors andpatients, case law would suggest that dishonesty is less amenable to remediation in thefitness to practise context.84 There is an inherent logic in this position, for where thepractitioner has shown themselves to be prone to dishonesty, there is reason to doubtthat any expressions of remorse and remediation are genuine. Case law arising out ofappeals from FTPP cases utilises a rhetoric which suggests a zero tolerance approachto dishonesty in members of the medical profession. For example in Singh v GMC, the

76. See eg Giele v General Medical Council [2005] EWHC 2143 (Admin); Council for theRegulation 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 a3-month suspension was not ‘unduly lenient’; cf the not easily distinguished case of Wentzel vGeneral 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 Counciland Leeper [2004] EWHC 1850 (Admin).79. ie Dr Pillai (February) (obtaining assistance from a patient to complete an essay) andDr 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 bypatient 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.



Privy Council, adopting the words of counsel, agreed that there was ‘no room fordishonest doctors’.85 Moreover, in a case frequently cited by the FTPP, the PrivyCouncil asserted that: ‘. . . Health Authorities must be able to place complete relianceon the integrity of practitioners; and the Committee is entitled to regard conduct whichundermines that confidence as calculated to reflect on the standards and reputation ofthe profession as a whole.’86

i. dishonesty and ‘impairment’

Dishonesty was found by the FTPP in 87 of the fitness to practise cases, by applyingthe Ghosh/Twinsectra tests for dishonesty87 or by accepting evidence of a convictionfor dishonest conduct. It was far from clear that a finding of dishonesty always gaverise to a finding of impairment and so some capacity for remediation was clearlypossible. Within this group of cases, a number of doctors managed to avoid a findingof impairment88 (and therefore no sanction was imposed) or a finding of impairmentwas made, but with no sanction attached.89 These instances of dishonesty wereregarded as ‘isolated incidents’ in the context of an otherwise ‘unblemished career’, orwere noted as being committed at an early stage of the doctor’s career and mitigatedby several glowing testimonials.90 Dishonesty in these cases was effectively excusedby reason of working under intolerable pressure and difficult personal circum-stances,91 or being overtaken by panic.92 In other words, the FTPP treated some casesof dishonesty as revealing a character flaw or attitudinal problem and as particularlyegregious conduct incapable of being remedied,93 but accepted in others that dishon-esty could be an aberration, triggered by external factors, in an inherently honestdoctor.94

So what is required in order to avoid a finding of ‘impairment’ where dishonestyhas been found? A number of cases resulted in the FTPP concluding that insight hadnot been achieved, as the doctors’ acknowledgement of their errant behaviour wasonly partial. A doctor who admitted he had ‘mishandled’ forms ‘inappropriately’ didnot convey insight into his dishonesty.95 Apologising for having ‘made a mistake’ was

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 dishonestaccording to the ordinary standards of reasonable and honest people and that D must haverealised 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 vLaw Society [2007] EWHC 3043 (Admin); [2009] 1 WLR 163.88. Dr Deng (May) – issuing two prescriptions for patients and entering them onto the recordsof other patients amounted to dishonesty but the FTPP took into account his expressions ofapology 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 whichprejudiced the health of its patients and was characterised by dishonest conduct described as soegregious that it could not be remediated.94. As in Dr Ghazanfar’s case (March).95. Dr Iceton (December).



similarly not regarded as demonstrating sufficient insight into dishonest conductunless there was explicit recognition that the past conduct was ‘dishonest’.96 A doctorwho told his colleagues incorrectly that he had been ‘cleared’ of the charges againsthim was therefore regarded as failing to recognise the gravity of the findings againsthim.97 Reluctantly offered acknowledgements of deficiencies were also not accept-able,98 nor were attempts to trivialise matters by referring to dishonesty as the resultof ‘mistakes or misunderstandings’.99 These examples show evidence of the FTPPsifting through the doctors’ responses to the allegations against them to discernwhether expressions of remorse revealed genuine contrition and insight, or repre-sented only a qualified or false expression of regret. Maintaining innocence ‘in theface of overwhelming evidence’ compounded the case against the doctor. In the caseagainst Dr Zaidi, the maintenance of innocence throughout the case was regarded as‘persistent dishonesty’ which merited erasure.100 Similar conclusions were drawn inDr Divakar’s case – his impairment was regarded as evidenced by the fact that hehad continued to dispute the allegations made against him for 3 years. Where dishon-esty was found, attempts at remediation (such as attendance at short course or comple-tion of continuing professional development (CPD) courses) needed specifically totarget the issue of dishonesty and enhanced personal integrity (eg attendance atprofessional ethics courses) rather than the improvement of clinical abilities.101


The courts have produced a series of judgments which have substituted erasure witha lesser sanction in cases of dishonesty, indicating that a doctor found guilty ofdishonesty may subsequently be repatriated with his profession.102 Only 35 of the 87cases involving dishonesty resulted in erasure at first instance (40%), underliningagain the fact that dishonesty did not automatically result in a finding that the doctor’sconduct was fundamentally incompatible with being a registered medical practitio-ner.103 In the review hearing of Dr Aung,104 for example, issues of probity demon-strated by covering up a medical error were considered in the context of a reviewhearing. The doctor’s fitness to practise was regarded as no longer impaired due to theinsight and remorse he had demonstrated, which included statements from his wife asto the remorse and impact the incident had had on the doctor’s life, and one month’smeditation undertaken while ordained as a Buddhist monk.

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 coursesand CPD activities in relation to clinical work did not go towards remediation of her dishonestyin telling her employer that she had travelled in a taxi due to gout rather than due to her drivingdisqualification.102. Singh v GMC [1998] UKPC 23; Manzur v GMC [2001] UKPC 55 (erasure dispropor-tionate for convictions of five counts of false accounting indicating ‘blatant’ dishonesty, butrepresenting 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).



Clearly not all findings of dishonesty resulted in a finding of impaired fitness topractise and even where dishonesty did result in a finding of impairment, in manycases it was treated as potentially remediable. The survey of 2009–2010 cases sug-gested that dishonesty tended to result in a sanction of suspension rather than erasureand that dishonesty was treated in many cases as potentially remediable. In fact therewas no uniform response to dishonest conduct, but rather a range of responses. Whereerasure was ordered it tended only to be in cases where dishonesty was accompaniedby either total disengagement from the regulatory body, or where there was a sustainedpattern of dishonesty demonstrated on a number of occasions.105

3. INSIGHT, CONTRITION AND REMEDIATION

Whether allegations faced by the doctor were that he was good (but clinically defi-cient), bad (deviant) or dishonest, the emphasis of insight, contrition and remediationwere constant themes. In most cases, these three elements made up the path toredemption for the errant doctor who could then be declared fit to return to practisewithout restriction. ‘Insight’ was used by the FTPP to mean an acceptance of respon-sibility for the incidents complained of. The terms ‘contrition’ and ‘remorse’ weregiven their ordinary meaning of regret for having done something wrong, whereasremediation was used to mean reparative conduct intended to redress the imbalancecaused by the doctor’s wrong (even if it could not directly repair the harm). Thefurther dynamics of this emphasis on contrition, insight and remediation in FTPPdecision making will be explored below.

A consequence of assessing fitness to practise at the date of the hearing, rather thanat the date of the incidents giving rise to the allegations, is that post-incident conductcan be taken into account to determine whether fitness to practise is currently‘impaired’.106 Evidence which was accepted of insight, contrition and remediationincluded the doctor admitting to the charges against him,107 apologising to the patientor their family,108 attending relevant CPD/courses to remedy perceived deficiencies inknowledge or skills,109 expressions of shame,110 and pleading guilty when chargedwith a criminal offence.111 A plea of contrition was negated by any suggestion that thedoctor concerned still blamed others or blamed external circumstances for the incidentwhich had brought him or her before the FTPP.112 Accepting responsibility for the

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 caseswhere there had been allegations of fraud in the completion of cremation certificates(Dr Mukhopadhyay (December); Dr Lakshmi (April)). This is undoubtedly a sensitive issuefor the medical profession given the circumstances in which Dr Shipman’s crimes wentundiscovered 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 pleadingguilty 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).



incident or any harm caused was, therefore, key in demonstrating that, notwithstand-ing any misconduct, the doctor was fit to return to practise. Conversely, a failure toplead guilty was often regarded as relevant to the doctor’s attitude and therefore ofrelevance when assessing whether fitness was impaired.113

The post-incident conduct which was subject to scrutiny included the doctor’sdecision on whether to attend the FTPP hearing. While non-attendance at the FTPPhearing was ritually met with the statement that ‘no adverse inferences shouldbe drawn’ from the doctor’s absence, the FTPP on occasion considered that wilfulabsence was evidence of an attitudinal problem or otherwise relevant to impairment.114

Within the dataset there were 56 cases where the doctor concerned did not attend andwas not represented. In 39 of these cases (70%) the hearing was concluded witherasure. It is hard to gauge the significance of this statistic. On the one hand, it can beregarded as a natural consequence of the fact that the disciplinary framework placesthe onus on the doctor to prove that they are fit to practise. In the absence of any suchevidence, the conclusion must therefore be that the doctor should not be permitted tocontinue in practise (on the other hand, that same end would be met by 12 months’suspension followed by review). Another interpretation is to view these cases as aform of ‘consensual’ erasure:115 the doctor does not think he has any reasonableprospects of convincing the FTPP that he is fit to practise, and so disengages himselffrom the regulatory process. Either way, this statistic supports the general conclusionthat the way in which the concept of ‘impairment’ has been applied incentivisescooperation with the regulator.

Practitioners who await their fitness to practise hearing have much to gain fromexpressing these desired sentiments of contrition, remorse, insight and willingness toremediate. Liability to sanction is dependent upon a finding of impairment. Doctorsare given the opportunity for redemption and rehabilitation which can influence thefinding against them in terms of whether their fitness is assessed as currently‘impaired’. Submission to the regulatory body and cooperation are richly rewarded,but non-cooperation is likely to be equated with ‘impairment’ and will also increasethe gravity of any applicable sanction.

ASSESSING THE ‘REDEMPTION MODEL’ OF PROFESSIONAL DISCIPLINE:THE MERITS AND DEMERITS OF USING CONTRITION, INSIGHT ANDREMEDIATION AS A PROXY FOR ‘FITNESS TO PRACTISE’

This analysis of FTPP decision making supports the assumption implicit in Yeong thatthere are in fact two types of fitness to practise cases: the type where a finding ofimpairment follows naturally from the conduct itself (for example, sexual offendingand the conviction for causing death by dangerous driving which demonstratedimpairment, despite substantial evidence of remorse and insight);116 and the type

113. Pillai v GMC [2009] EWHC 1048 (Admin).114. Dr Adeyemi (January), Dr Compton (January). This application receives some supportfrom 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 toanswer 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 toevade sanction – eg Dr Cason (August).116. Above n 42, Dr Meller referred to in accompanying text.



where consideration can be given to the doctor’s behaviour between the conduct andthe hearing so as to lessen the likelihood of a finding of impairment (which, surpris-ingly, included many cases of dishonesty). The findings did not sustain Mitting J’ssuggestion in Zygmunt that identification of misconduct invariably results in a findingof impairment.117 This is arguably an over-statement which conceals the true extent ofwhat is referred to here as the ‘redemption model’ of fitness to practise. The GMC’sfitness to practise decision making can in fact be described as yet another example ofAyres and Braithwaite’s ‘responsive regulation’,118 based on a redemption model ofprofessional discipline. The sanctions at the FTPP’s disposal, set out for the most partin s 35D of the Medical Act 1983, exist as incentives for practitioners to demonstratethe values of cooperation, remorse, contrition, remediation and rehabilitation empha-sised so consistently in the FTPP minutes. The often lengthy interim period betweencommencing a case against a doctor and reaching the final hearing provides thepractitioner and the regulator with time in which to negotiate the outcome.

i. the merits of the redemption model of fitness to practise

The use of regulatory strategy to reward and incentivise reflection, remorse andacceptance of responsibility is likely to impart significant benefits to our society.Remorse and apology have been studied in the criminal justice context and are widelyaccepted as offering more than just a means of diagnosing the appropriate sanction,but as a means of delivering education, healing and reconciliation.119 These benefitsseem particularly apt to be realised in the disciplinary context. For example, theincentivising of remorse and remediation can result in educational and developmentalgains including the internalisation of professional values, such as critical evaluation ofthe service being provided120 and putting the patient first. These gains, if realised,improve the capacity of practitioners to become ‘self-regulating’ at the micro level. Asto the capacity of contrition and redemption to achieve ‘healing’, although the prac-titioner’s remorse and contrition are played out in the context of interaction betweenthe registrants and their regulator, FTPP hearings are often attended by patients orfamilies who have been directly affected by the subject-matter of the complaint.121

117. Above n 11, per Mitting J in Zygmunt, referred to in accompanying text.118. I Ayres and J Braithwaite Responsive Regulation: Transcending the Deregulation Debate(Oxford: OUP, 1992), 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 egR v Cooksley [2003] EWCA Crim 996; [2004] 1 Cr App R(S) 1 in relation to causing deathby dangerous driving. Those who argue against the relevance of remorse to sentencing, eg RDuff Punishment, Communication and Community (Oxford: OUP, 2001), tend to argue thatsentences are directed towards punishment of the crime, therefore the general character of thedefendant is not relevant to this process. This critique, of course, has less weight in thecontext of professional discipline where the sanctions are not intended to be punitive innature.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 thatpoor 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 whentreatment goes wrong: eg C Vincent et al ‘Why do people sue doctors?’ in A Study of Patientsand Relatives Taking Legal Action (1994) 343 Lancet 1609 at 1612. Research commissioned forthe consultation paper Making Amends (DoH, 2003) which formed the backdrop for the NHS



Finally, as in the sphere of criminal justice, remorse and contrition can fulfil a role ofritual reconciliation, in the form of an expression of commitment to professionalnorms by the erring practitioner and a demonstration of the practitioner’s eligibility toenjoy membership of the profession.122 Through this ritual, errant doctors are recon-ciled with their profession and repatriated.

There are yet more related benefits to be gained from the emphasis which theumbrella concept of ‘impairment’ has brought on remorse and remediation. First, itcultivates certain desirable professional attributes. A clear emphasis on the possibilityof redemption promotes the professional ideal of individual accountability or self-governance, for it is made clear in the text of the FTPP minutes that responsibility forundertaking and proving redemption and rehabilitation is in the doctor’s hands. Indemonstrating a form of forgiveness, the current application of ‘impairment’ alsoencourages those subject to disciplinary proceedings to operate a similarly compas-sionate policy with others. As with many other forms of conduct, such as trusting,123

it is suggested that forgiveness and fairness towards the defendant doctor will begetsimilar behaviour towards others.

The emphasis on redemption (as opposed to a preoccupation with punishing orsanctioning doctors) is also more in tune with the public’s modern, post-‘crisis’expectations of the medical profession in recognising that it is human to err.124 Thenew model of professionalism expressed in this willingness to countenance redemp-tion presents a more realistic, multi-faceted form of professional discipline pareddown from the old archetype of the doctor as selfless ‘paragon of virtue’.125 Thismodern construct of professional membership is, however, hard to reconcile with thecases of motoring offences which resulted in a stain on the doctors’ registration for 5years.

Secondly, there are other more explicitly economic gains to be had from utilisinga style of professional regulation which incentivises cooperation. Where regulationsuccessfully breeds cooperation, that cooperation can become a useful asset in thereduction of future regulatory costs.126 The emphasis on remorse, remediation andcontrition serves the risk management dimension of professional discipline well,provided it can be assumed that expressions of remorse and attempts at remediationwhich are at first false, have a good chance of becoming internalised and thereforegenuine. A doctor found guilty of misconduct, but who grasps the opportunity forredemption, would therefore present a minimised risk of recidivism. (It is commonlyassumed that a remorseful defendant is less likely to present a risk of re-offending inthe future, although there is scant empirical evidence of the link between remorse and

Redress Act 2006 suggested that while nearly 60% of victims of medical error desired anapology only 11% wanted financial compensation (p 75).122. See N Tavuchis on apology and membership in Mea Culpa: A Sociology of Apology andReconciliation (Stanford: Stanford University Press, 1991), p 8.123. See eg D Gambetta Trust: Making and Breaking Cooperative Relations (Blackwell,1989); JL Bradach and RG Eccles ‘Price, authority and trust: from ideal types to plural forms’(1989) 15 Annual Review of Sociology 97.124. See eg Setting Standards (Picker Institute, 2006) at 1.5 summarising interview and focusgroup based research and expressing the conclusion that patients no longer expect doctors todemonstrate moral excellence.125. P de Prez ‘Self-regulation and paragons of virtue: the case of “fitness to practise” ’ [2002]10(1) Med L Rev 28.126. Ayres and Braithwaite, above n 118, p 18.



recidivism either way.)127 The pursuit of rehabilitation rather than punishment alsochimes well with the economic context of the GMC’s role in protecting the publicinterest. Regulation which focuses on encouraging rehabilitation and repatriationconserves the nation’s significant investment in the education and training of doctors.Ongoing shortages of trained and experienced doctors point to the importance ofconserving the nation’s existing stock of medical expertise.128

Finally, the consistent emphasis on contrition and remediation has an interestingimpact on the construction of the interim period between the GMC initiating a caseagainst a doctor and its final resolution. As is illustrated in a number of these cases, thedelay between allegation and the FTPP hearing will often exceed 2 years and this isclearly regarded as undesirable, given that the GMC is subject to targets for the timetaken to resolve cases129 and that there may be significant cost implications to theNHS in terms of lost working days.130 Dame Janet Smith raised concerns that doctorsmight aggravate this problem by manipulating the process so as to reduce the risk ofa finding that his or her fitness was impaired.131 Certainly, it is true that expeditionof a case may not be in the doctor’s favour, as the FTPP may conclude that there hasbeen insufficient time since the misconduct to remediate the wrongs committed.132 Thepassage of time is therefore often critical to avoiding a finding of impairment. Thus,the concept of ‘impairment’ has in one sense transformed ‘dysfunctional delay’ intotime afforded for making amends, reflection and developing insight. On the otherhand, the passage of time can negate the expressive functions of the fitness to practiseprocess. In one case, heard 10 years after the alleged misconduct took place, it wasdecided that the misconduct did not merit suspension as it had been so long since theevent and there had been no problems in the intervening decade.133 In a second caseinvolving a 10-year delay between incident and hearing, multiple charges of seriousprofessional misconduct appeared to produce leniency in the form of conditions

127. See eg the sources cited in S Tudor ‘Why should remorse be a mitigating factor insentencing?’ (2008) 2(3) Criminal Justice and Philosophy 241 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 servicesof a good medic, but are less convinced that there is a public interest in conserving the skills ofa 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 doctorsare suspended by their employer pending the outcome of a hearing. Annual statistics onnumbers of NHS doctors suspended by their employer are collated by the National ClinicalAssessment Service (see www.ncas.nhs.uk/publications/statistics). The mid-year report onthese statistics for 2010/2011 tentatively suggests that suspensions involving the GMC orGeneral 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 andDentists (NCAS, 2011)). Unfortunately, these statistics currently draw no distinction betweencases where the GMC is involved because there is a fitness to practise case pending and caseswhere the doctor has been suspended because the GMC has already decided against him/her andimposed 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-halfyears after incidents concerning a single patient. Finding of impairment made due to failure toshow signs of remediation.



imposed on the doctor’s registration.134 While these outcomes are probably fair to thedoctor concerned, they miss the opportunity to fulfil the expressive functions ofFTPPs, and are likely to invite allegations of regulatory impotence.

ii. dysfunctionalities of the redemption model of fitness to practise

Notwithstanding the significant benefits that the redemption model of impairment hasto offer, embracing this style of fitness to practise decision making entails certainintricacies which deserve consideration in the future development of the fitness topractise landscape. Proponents of ‘responsive’ styles of regulation135 emphasise theefficiency gains in minimising the costs of regulating a given activity, but there are anumber of complexities inherent in the current emphasis on redemption which are notimmediately apparent. The most striking of these are those that lead to questions aboutthe capacity of the regulatory system to determine the truth. There is a risk that theredemptive model may over-emphasise expressions of remorse and unwittingly pri-oritise them above the truth. The goal of step one of the FTPP hearing is to establishwhether the alleged facts which form the substance of the allegations are proved.Incentivising remorse and contrition may encourage doctors to admit (falsely) to thefull extent of charges and can draw the regulator into neglecting its role of ascertainingwhat in fact occurred.136 Such a distortion of the process could result in the inappro-priate individualisation of fault when the problem is in fact far more complex andendemic to organisational, procedural or structural factors operating at that particulartime. The FTPP’s requirement that the doctor does not blame others shows that theapplication of ‘impairment’ requires individualisation of fault in direct opposition torecent efforts to reduce inappropriate ‘blaming’ and to place error in its situationalcontext.137 Incentivising the acceptance of fault can indirectly encourage others toneglect exploration of additional factors which contributed to the error. Anotherimplication for ‘truth finding’ is that it is undoubtedly possible for practitioners tofake their remorse and make remedial gestures, thereby disguising their real attitudetowards professional values. The fact that registrants are usually represented by arelatively small group of highly specialised counsel, well versed in fitness to practisehearings, is a factor likely to increase the risk of strategic expressions of remorse andremediation which have little relationship with whether a practitioner is trulyimpaired.138 The potential for genuine remorse can be corrupted by incentivising it aspart of the FTPP process. Further, to ‘commodify’ remorse and apology is to cheapenthese sentiments when they are voluntarily and freely expressed.139 Some academics

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 andSolanke [2004] EWHC 944 (Admin) at [51] where the court admonished the GMC for allowingthe lack of evidence from the patient at the centre of the misconduct allegation to cause it toabandon its role in ‘ensuring the true picture was exposed’.137. See eg An Organisation with a Memory (DoH, 2000) preferring a ‘systems’ approach overa ‘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 hisexpressions of remorse and contrition to the FTPP’s satisfaction.139. L Taft ‘Apology subverted: the commodification of apology’ (2000) 109 Yale LJ 1135.



have argued, however, that even false expressions of remorse are valuable as they can,when repeated, have a transformative effect on the subject’s attitude and outlook.140

Rewarding contrition and efforts at remediation (notwithstanding the implicationsfor truth finding) is probably more palatable than the converse side of this process, thatis, the apparent punishment of denials and persistent claims of innocence.141 Inparticular, since the burden of proof in FTPP hearings is now one of proving the caseon the ‘balance of probabilities’, meaning that a finding that the complaint has beenproved leaves significant room for doubt, it is questionable whether a practitioner whomaintains his innocence of the charges should be punished for it. Certainly, there arenumerous critics of the GMC who regard its procedures as ‘draconian’.142 While thispaper is not intended to lend support to these critics, a philosophy which places somuch weight on cooperation and defines dissension as breach of a professionalobligation might easily give rise to the call that the GMC is attempting to silencedissenters and ‘homogenise’ or ‘programme’ members of the profession. Leavingaside such Orwellian aspersions, the implications of a failure to ‘cooperate’ can giverise to more moderate suggestions that the procedure operates unfairly against prac-titioners who are unwilling to barter cooperation and contrition for regulatorylenience. In the case of Pillai v GMC143 the judgment of Mitting J rejected any analogybetween the practice of ‘sentence discounting’ for early guilty pleas in the criminalcourts and the application of the concept of ‘impairment’ in professional disciplinecases. Thus, while in the context of a criminal prosecution, a failure to plead guilty atthe earliest opportunity is not to be regarded as an aggravating factor giving rise to amore severe sentence,144 the doctor’s failure to confess to his dishonesty during thecourse of the proceedings could be taken into account in determining whether fitnesswas impaired.145 Allowing the maintenance of innocence to prejudice the case againsta defendant in disciplinary proceedings but not in criminal proceedings seems torest on shallow distinctions. In any case, it will be increasingly difficult to maintainsuch a distinction in the face of the courts’ acceptance that the right to practise aprofession constitutes a ‘civil right’ for the purposes of Art 6(1) of the EuropeanConvention on Human Rights. Decisions which ‘determine’ such rights are accord-ingly subject to the principles of fairness.146

Finally, the redemptive model of fitness to practise poses difficulties for theregulator’s management of public perceptions. While the maintenance of publicconfidence is a major theme of the fitness to practise regime, it is not clear that the

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 Organisationand 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 defendantsexercising their right to jury trial: P Darbyshire ‘The mischief of plea bargaining and sentencingrewards’ (2000) Crim LR 895.145. Above n 143, at [15].146. Le Compte, Van Leuven and De Meyere v Belgium (1981) 4 EHRR1, successfully reliedupon in Kulkarni v Milton Keynes Hospital NHS Foundation Trust [2009] IRLR 829 andGovernors of X School v R (on the application of A) [2010] EWCA Civ 1; [2010] 2 All ER555 to argue that proceedings which could effectively deprive C of his right to practise hisprofession (as opposed to allowing him to continue in present employment) attracted Art 6protection.



public understands professional discipline to be informed by the possibilities forredemption, and this is illustrated perhaps by the media response to Dr Gurun’scase mentioned earlier. As set out above, sanctions are communicated to the publicin the main through media dissemination. Media portrayals of fitness to practisecases tend to ignore doctors’ efforts at remediation and instead dwell on the mis-conduct and the sanction. Disciplinary sanctions tend to be constructed superficiallyand through the prism of ‘punishment’ and the media fail to communicate the intri-cacies of the four steps of FTPP hearings. In summary, the separation of the FTPP’sfunctions of deciding whether there has been misconduct, and then separately decid-ing whether a finding of impairment should follow, introduces a level of complexityinto professional discipline which is not widely appreciated by the public. Thesefactors are potentially a recipe for allegations of undue regulatory lenience andsuspicion that the application of ‘impairment’ demonstrates insufficient indepen-dence from those being regulated.

CONCLUSION

This analysis of the concept of ‘impairment’ has suggested that sexual misconduct(a category which counter-intuitively encompasses both non-consensual sexual actsand consensual personal relationships with patients) attracts the highest incidence oferasure and demonstrates the highest level of non-remediability. This is unsurprisinggiven the corporeal dimensions of trust which the therapeutic enterprise dependsupon. The same analysis suggested a higher level of tolerance of dishonesty thanwas expected, with less than half of these cases resulting in erasure and a number ofcases where only lower level sanctions were employed. A tension was noted in caseswhere the allegation against the doctor was one of having ‘brought the profession intodisrepute’. It was here in particular that the use of regulatory levers was noted (eg formotoring offences and sexual offences against children) which facilitated the defini-tion of personal conduct as breach of a professional norm, and therefore a matter ofprofessional discipline. This may be an outward sign that the FTPP feels less com-fortable relying on ‘bringing disrepute onto the profession’ as a stand-alone ground forimpairment, and that questions may be legitimately raised about the breadth of itsapplication in modern professional regulation. Although it is likely that the publicwould continue to support highly visible professional discipline for conduct exhibitingsigns of paedophilia, it is not clear that public support for such action in respect ofmotoring offences is as unequivocal.147

It was, however, the broader findings of this analysis that proved to be of greaterinterest. The unifying concept of ‘impairment’, introduced to ease the cumbersomenature of resolving complaints against doctors, has brought with it a style of fitness topractise proceedings characterised by offering doctors opportunities for redemption.This emphasis on individual redemption entails significant benefits for doctors,patients and society. It is an example of creative and responsive regulation in usingfitness to practise hearings as a means of encouraging compliance for the future and

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 deathby dangerous driving and referred to above at text accompanying n 42) record that ‘at no timewas 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.’



facilitating self-governance within the medical profession. It preserves valued socialcapital in the form of highly skilled, intensively trained medical professionals andis more consistent with modern expectations of doctors. The redemptive model offitness to practise also however entails certain risks, to include the commodificationof sentiments such as remorse and attempts to remediate any harm caused. If notvigilantly supervised, such an approach may result in feigned expressions of insightinto the reasons for the doctor’s failure to meet professional standards; a superficialexercise by which regulator and regulated trade offerings of contrition and forgive-ness. In individual cases, this exchange can obscure the truth of the doctor’s natureand compromise professional integrity. Alternatively, it may encourage the inappro-priate individualisation of blame. Finally, the public’s binary conception of fitness topractise cases, dwelling disproportionately on the final sanction, is a poor fit for theredemption model of fitness to practise. This tension, unless addressed, is likely toattract allegations of regulatory lenience. While this paper does not offer solutions toany of these issues, it is hoped that it offers fresh insight into the application of thestatutory concept of ‘impairment’ and the efficacy of professional regulation, and thatit highlights some of the dilemmas which the GMC’s approach entails. It is also hopedthat this paper identifies the need for further research into issues such as: (given thatmaintaining public confidence is such a large part of the GMC’s function) the public’sviews on what matters should give rise to a finding of ‘impairment’; which issuesought to be considered to be readily remediable; and the extent to which the com-modification of remorse, contrition and remediation has the potential to undermine theintegrity of professional regulation.



The good, the bad and the dishonest doctor: the General Medical Council and the ‘redemption...

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