I have had a total of 10 emails regarding the interpretation of this case law. Doctors appear to have the view that this judgment states that there should be a non disclosure of GMC proceedings that the doctor has been subjected to.
I will be very grateful if the case referred to here is not used by any doctor to justify their non disclosure on application forms of Fitness to Practice Proceedings. It should be noted that Collins J misdirected himself on many aspects in this case, most notably, the meaning of the word "proceeding". The law is clear on the word "proceeding", R v SDT v Toth is the case law that cites the word "proceeding" to commence from the date the complaint is made. The case has not been accepted by the Department of Health and neither has the judgment been consulted with the current requirement for disclosure of investigations. Essentially, the safest option is to disclose all complaints and outcomes of a GMC investigation whether you are cleared or not. This should be the position until another doctor manages to try this issue in a court of law. Clearly, my effort at a test case was ruined by three blind mice.
The word "proceeding" commences from the date a complaint is made. It is a simple fact that Collins J essentially got it wrong.
Collins J is not an employment lawyer and moreover neither were the two barristers representing the sides. It is for this reason, all three were a bit like the three blind mice.
The blind were indeed leading the blind. It should also be noted that the wrong definition of "misconduct" was used in the case in question lowering the threshold and widening what can be capable of "misconduct". Within the civil standard of proof, it will ensure that any complaint can be investigated by the GMC. It reduced the strength of the Registrar as gatekeeper to complaints.
The case is essentially a disaster in medical regulatory jurisprudence. It is best that the judgment is not used in further cases to further bend justice the wrong way around. The chronology used was completely wrong. The judgment has large numbers of typographical errors. The judgment actually is referred to as the upside down pineapple cake. It was essentially badly drafted and formulated and also based on perjured evidence by Worcestershire Mental Health Trust. One of the leading QCs told me that it was one of the worst judgments he had ever seen in terms of formulation and analysis. Essentially, it was a misdirected and misconceived judgment formulated by three lawyers with no understanding of the current issues in medical employment. The judgment also established that the GMC was not liable for any damage caused to the employment of a doctor following their investigation. Essentially, Collins J the hero of many doctors has decreed that the GMC is a super-regulator that will never be held accountable no matter how many disasters they are responsible for.
Because the case is essentially a sham of a judgment, it is best that no doctor relies upon it now or in the future. It should not serve to influence any further case law. It was one of the first test cases on a cleared complaint that should have served to balance the public interests to the doctors interest. Instead, it flipped it far towards the public's interest. It was also intended to ensure that junior doctors' employment prospects were protected but failed in that aim. Collins J's half baked effort at supposedly protecting doctors is actually meaningless in the real world. Currently, there is no protection for the destruction of employment prospects following a GMC investigation. This will not matter to the majority of doctors. Nevertheless, it becomes a problem when doctors are subjected to complaints. As there has been a hike in uptake of GMC complaints following the flip to the civil standard, there is limited protection for the innocent doctor at the present time.
I will be very grateful if the case referred to here is not used by any doctor to justify their non disclosure on application forms of Fitness to Practice Proceedings. It should be noted that Collins J misdirected himself on many aspects in this case, most notably, the meaning of the word "proceeding". The law is clear on the word "proceeding", R v SDT v Toth is the case law that cites the word "proceeding" to commence from the date the complaint is made. The case has not been accepted by the Department of Health and neither has the judgment been consulted with the current requirement for disclosure of investigations. Essentially, the safest option is to disclose all complaints and outcomes of a GMC investigation whether you are cleared or not. This should be the position until another doctor manages to try this issue in a court of law. Clearly, my effort at a test case was ruined by three blind mice.
The word "proceeding" commences from the date a complaint is made. It is a simple fact that Collins J essentially got it wrong.
Collins J is not an employment lawyer and moreover neither were the two barristers representing the sides. It is for this reason, all three were a bit like the three blind mice.
The blind were indeed leading the blind. It should also be noted that the wrong definition of "misconduct" was used in the case in question lowering the threshold and widening what can be capable of "misconduct". Within the civil standard of proof, it will ensure that any complaint can be investigated by the GMC. It reduced the strength of the Registrar as gatekeeper to complaints.
The case is essentially a disaster in medical regulatory jurisprudence. It is best that the judgment is not used in further cases to further bend justice the wrong way around. The chronology used was completely wrong. The judgment has large numbers of typographical errors. The judgment actually is referred to as the upside down pineapple cake. It was essentially badly drafted and formulated and also based on perjured evidence by Worcestershire Mental Health Trust. One of the leading QCs told me that it was one of the worst judgments he had ever seen in terms of formulation and analysis. Essentially, it was a misdirected and misconceived judgment formulated by three lawyers with no understanding of the current issues in medical employment. The judgment also established that the GMC was not liable for any damage caused to the employment of a doctor following their investigation. Essentially, Collins J the hero of many doctors has decreed that the GMC is a super-regulator that will never be held accountable no matter how many disasters they are responsible for.
Because the case is essentially a sham of a judgment, it is best that no doctor relies upon it now or in the future. It should not serve to influence any further case law. It was one of the first test cases on a cleared complaint that should have served to balance the public interests to the doctors interest. Instead, it flipped it far towards the public's interest. It was also intended to ensure that junior doctors' employment prospects were protected but failed in that aim. Collins J's half baked effort at supposedly protecting doctors is actually meaningless in the real world. Currently, there is no protection for the destruction of employment prospects following a GMC investigation. This will not matter to the majority of doctors. Nevertheless, it becomes a problem when doctors are subjected to complaints. As there has been a hike in uptake of GMC complaints following the flip to the civil standard, there is limited protection for the innocent doctor at the present time.
4 comments:
At the moment, many cases being "investigated" (using that term loosely) were begun under the criminal standard of proof, and switched mid way to the civil standard of proof.
Does this allow for different interpretations of the case law depending on which standard is used?
Where do those cases stand which have been changed (or even purposively delayed)to allow the GMC to start investigation under one set of rules, see the change coming, delay and then investigate under the next set of rules?
It seems that there were a number of cases in the pipeline, that would not have held any water under the old rules. The GMC realising this and understanding that a change in rules would widen their net, delayed these cases until the new rules were in place.
Was Justice Collins under the impression he was acting under the new rules or the old rules? did he have any idea that the rules had changed?
Is there any defence where the rules are changed midstream?
Hey Liz,
Few rules of the GMC here for you.
1. The GMC do whatever they wish whenever they wish. They are prone to act against case law. Theirs is a whim essentially.
2. If you think about it, the switch of standards of proof midway is a Article 6 of the HRA breach. Now, this has never been argued by anyone therefore it is yet to be a defence. Administratively, you can't change the rules of the game midway. The GMC does though all the time.
3. It is for the legal team to argue [2] and to insist that the same standard of proof is followed. In a recent case that is yet to be heard - GMC v Murphy et al - Halton, the GMC are arguing a criminal standard of proof despite their own protocol that the standard of proof will flip over at the point where the doctor is charged. In other cases, the GMC may be arguing a civil standard so anything goes!
4. Collins J had no idea what he was doing. That is a fact. Secondly, he had no idea that this was a criminal standard of proof case. Reading it, you would think it was a civil standard case but it actually wasn't.
Collins remarked at the end of the judgment that it was a sunny day. The fact remains that he made a spectacular mess of this case. He may not wish to admit it but in disliking me and comparing me to the NMC case of Margaret Haywood, he really has plunged several doctors into a large net giving the GMC free season to hunt down anyone.
5. Two points
Varma v GMC at the Court of Appeal is arguing the change in rules mid procedure as a breach of Article 6
It is also arguing that inordinate delay is a breach of Article 6. It is interesting to note that GMC v Henshall [2] at the GMC hearing held that a inordinate delay may be a Article 6 breach but that the public interest meant that the case should proceed forward. http://paca.org.uk/pdf_files/Spencer_Southall_Samuels_Transcript.pdf
has all the arguments.
6. The only defence against maladministration and the games played by the GMC is to argue a breach of human rights. That worked in some cases but fails in others. So, given the entire system is a casino and doesn't actually follow any rules, any doctor can play the dice and win.
RP
Finally, I think the judgment lulls doctors into a false sense of security that there is no requirement for disclosure of an investigation.
1. There is no legal requirement by the doctor at the onset of the investigation - to disclose the GMC investigations to their employers. This is admitted by the GMC.
2. If the investigation is completed at any stage prior to the hearing, Trusts would say that they are disclosable. It is arguable to use this case as a defence but it is quite a dangerous and unreliable way of defending the doctor. The GMC do still take up complaints of non disclosure of investigations - as further evidence of breach under GMP. To prevent this, it is better to be completely honest on an application form. That of course has the added effect of prejudicing employment - but it is better than an instigation of an investigation
RP
Thanks for this - plenty of food for thought
The difficulty is that once the GMC have their claws into a doctor they interfere in all attempts that that doctor makes to get back to work
The GMC is radicalising elements of the medical profession. Actions that might once have been professional suicide are seen as the only way forward.
Have a good break - well earned!! and don't forget to take plenty of Fortnum and Mason dog biscuits for the huskies
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