In March 2007, the Inner House of the Court of Session considered the first appeal heard in Scotland against a decision of a Fitness to Practise Panel of the GMC.
The appeal was taken by a Scottish general practitioner against the Panel's decision to find her guilty of serious professional misconduct in respect of aspects of a consultation with a child suffering from asthma that took place in August 2002, and the subsequent decision to suspend her from practice for a period of three months. In refusing the appeal, the three-judge bench issued an opinion which affords guidance as to the likely approach to be taken by the Scottish Courts to such appeals by Scottish registered doctors, which now devolve to them for consideration under the Medical Act 1983 (as amended).
Decision of the Inner House
The Court found it unhelpful to set down or rely upon a stated definition of the threshold for "serious" professional misconduct. They stated that this was in every case a matter for the disciplinary panel exercising its own skilled judgement on the facts and circumstances and in light of the evidence.
As to the powers of the appellate court, citing previous case law in Scotland, the court approved the test that provides that:
- the court should look at the whole circumstances of the case while having due respect for the expertise of the panel;
- when invited to disturb a finding of serious professional misconduct, the court should defer to the panel to the extent appropriate in the circumstances;
- where the conduct complained of concerns a technical question of medical malpractice, the court would be at a serious disadvantage to the disciplinary panel.
Of note in this case was that, while the conduct complained of principally concerned matters of medical practice, the composition of the panel was half lay, with a lay chair. It will be an interesting observation as to whether the courts will be less deferential to panel expertise on technical matters as the trend of increasing lay membership continues.
Nevertheless, with this decision the Scottish court endorsed the traditional view that considerable deference will be shown to the skilled judgement of the panel. It gives little encouragement to appeals "on the merits", and perhaps suggests that only appeals on grounds of procedural impropriety or unfairness will have real prospects of being upheld.