Doctor's Acquittal Overturned

Originally published in September 2004

What can be more stressful in a doctor's†career than having to attend a conduct†hearing before the General Medical†Council? Not much. So if a doctor faces a†hearing before the Professional Conduct†Committee but is acquitted of serious†professional misconduct, can he breathe a†sigh of relief and put it behind him? Not†any more.Welcome to the new regulatory†world!

The Council for the Regulation of Healthcare†Professions ('the Council') is the new†overarching body which examines the work of†nine regulatory organisations including the†General Medical Council (GMC), the General†Dental Council and the Nursing and†Midwifery Council. Its powers emanate from†the National Health Service and Health Care†Professions Act 2002 ('the Act').

Section 29(4) of the Act allows the Council to†refer decisions of the disciplinary committees†of the nine regulatory bodies concerned to the†High Court if it considers that the decision†was 'unduly lenient ... and .... it would be†desirable for the protection of members of the†public'. The policy behind this is to provide†some mechanism to 'appeal' an over-lenient†decision, just as a practitioner can appeal†against a decision which is too severe.†However, it was envisaged by John Hutton†MP who introduced the Bill that "....the power†will need to be used only in exceptionally rare†circumstances".

What Mr Hutton did not make clear is†whether or not it was intended that the power†of the Council should extend to cases in which†practitioners have been acquitted, as opposed†to being sentenced too leniently after†conviction.

The Council's own consultation paper†questioned whether the Council had the power†to refer acquittals. It noted in particular that†the list of relevant decisions set out in s.29(1)†did not sit easily on this point as this suggests†that the Council can only refer those decisions†made after a finding of serious professional†misconduct. The Council happily concluded†that 'however that matter is resolved, it should†not affect many cases which are likely to be of†concern'. As it so happens, the very first case†to be referred by the Council involved†precisely this issue.

RadcliffesLeBrasseur were instructed by the†Medical Protection Society in this first case†challenging the remit of the Council's new†powers. This article summarises the†difficulties in assessing the scope of the†Council's powers and the potential impact (and†injustice) they may have on health...