Regulation of Health and Social Care Professionals Consultation

Misconduct
7.6 Most of the governing legislation refers expressly to misconduct as one of the
ways in which fitness to practise may be impaired. Although the Chiropractors Act
1994 and the Osteopaths Act 1993 use the phrase “conduct which falls short of
the standard required”, in practice this covers the same ground as misconduct. 3
7.7 According to case law, misconduct is of two principal kinds:
(1) sufficiently serious misconduct in the exercise of professional practice;
and
(2) conduct of a morally culpable or otherwise disgraceful kind which may or
may not be related to the exercise of professional skills, but which brings
disgrace upon the practitioner and thereby prejudices the reputation of
the profession. 4
7.8 In most cases, misconduct is interpreted as meaning only serious incidents such
as a criminal conviction, dishonest or fraudulent behaviour and sexual contact
with a patient. A single negligent act or omission is less likely to cross the
threshold of misconduct than multiple acts or omissions but depending upon the
circumstances, “a single negligent act or omission, if particularly grave” could be
characterised as misconduct. 5
7.9 Several cases relating to doctors have grappled with the question of which acts
or omissions fall within a registrant’s professional practice for the purpose of the
first limb of misconduct identified above. Activities which have been held as being
sufficiently related to the practice of medicine include where a doctor acts in an
administrative capacity as chief executive of a hospital or gives expert evidence
in a trial. 6 However, in R (Remedy UK Ltd) v General Medical Council the
involvement of two doctors in developing a medical training appointments system
was not sufficiently linked to their professional practice to bring it within the first
limb of misconduct outlined above. 7
Deficient performance
7.10 Most of the governing legislation now refers to deficient professional performance
or lack of competence as one of the ways in which fitness to practise may be
impaired. 8 Deficient performance as a form of impaired fitness to practise was
introduced in the 1990s to deal with cases where a professional’s behaviour or
3 Chiropractors Act 1994, s 20(1)(a) and Osteopaths Act 1993 s 20(1)(a).
4
R (Remedy UK Ltd) v General Medical Council [2010] EWHC 1245 (Admin), [2010] Med
LR 330 at [37].
5
Calhaem v General Medical Council [2007] EWHC 2606 Admin, [2008] LS Law Medical 96
at [39].
6 Roylance v General Medical Council [2000] 1 AC 311 and General Medical Council v
Meadow [2006] EWCA Civ 1390, [2007] QB 462.
7
R (Remedy UK Ltd) v General Medical Council [2010] EWHC 1245 (Admin), [2010] Med
LR 330 at [51].
8 The exception is the General Social Care Council whose governing legislation, the Care
Standards Act 2000, does not refer to any form of professional performance or
incompetence.
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