Regulation of Health and Social Care Professionals Consultation

asset”. 10 The courts have also recognised that the need to preserve confidence in
the profession is particularly significant when considering sanctions against a
practitioner whose fitness to practise is impaired, and in some cases this
consideration can amount to the “paramount interest” of the regulator. 11
3.10 The meaning of ensuring confidence in the profession is normally explained in
utilitarian terms. Accordingly, Mr Justice Irwin has stated that there are several
public benefits to be gained from trust in the medical profession:
It is not just a matter of whether the doctor is risky in practice, or
whether indeed a doctor can be trusted to understand what he has
done wrong and can be trusted not to repeat it; public trust in doctors
is essential to the whole enterprise of medicine. A destruction of that
trust would be corrosive to the general attitude to the profession and
therefore to the effectiveness overall of treatment. In a questioning
and doubting world where trust is at a premium, if public trust in
doctors falls generally then people will be likely to suffer as a direct
consequence and may not seek help or seek help quickly enough.
They may doubt the advice or prescriptions given to them by doctors
and fail to follow it, or fail to follow the advice of prescriptions
rigorously. The regulatory arm of the profession, it seems to me, does
have a special knowledge of this and of its implications; and this
consideration must underpin the various dicta in which the courts
emphasise the degree of respect to be paid to Fitness to Practise
Panels on questions of honesty and the implications of dishonesty. 12
3.11 The implication is that although the preservation of trust in the profession is not a
stated statutory objective, it can be regarded as subsumed within the public
protection duty if it is accepted that confidence in the profession is essential to
good quality care and that loss of trust will have negative implications for the
health and safety of the public. In effect, maintaining confidence in the profession
is part and parcel of the main statutory duty of public protection.
3.12 The difficulty with this explanation is that it fails to demarcate any limits to the
regulatory aim of preserving confidence in the profession. Any matter which
potentially undermines public confidence in the profession becomes necessarily a
matter of public protection. But not all matters that undermine public confidence
will be relevant to public protection, for example matters which involve private
conduct or belief and do not raise any concerns about patient safety or clinical
competence.
10 Bolton v Law Society [1994] 1 WLR 512, 518 and Gupta v General Medical Council [2002]
1 WLR 1681, 1702. Also, see Council for Healthcare Regulatory Excellence v Nursing and
Midwifery Council [2011] EWHC 927 (Admin), [2011] ACD 72 at [74].
11
Wentzel v General Medical Council [2004] EWHC 381 (Admin), (2005) 82 BMLR 127 at
[25].
12
Makki v General Medical Council [2009] EWHC 3180 (Admin), [2009] All ER (D) 106 (Dec)
at [43] by Irwin J.
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