Case Law Update: Dr Luise Schodlok v General Medical Council  EWCA Civ 769
27 July 2015
Dr Schodlok initially appealed the decision (dated 15th February 2013) of the Fitness to Practise Panel of the Medical Practitioners Tribunal Service (‘the Panel’) to the High Court. The Panel had decided that Dr Schodlok was guilty of 4 instances of serious misconduct and 6 instances of misconduct, which did not amount to serious misconduct (‘non-serious misconduct’). The Panel determined that Dr Schodlok’s fitness to practise was impaired and imposed an order of Conditions.
In the High Court, His Honour Judge Sycamore determined that it was proper that the appeal was limited to only the 4 findings of serious misconduct as the Panel did not rely on the 6 instances of non-serious misconduct when making its decision. HHJ Sycamore rejected the procedural elements of the Appeal and upheld the Panel’s findings of fact. He concluded that there was no other basis on which to interfere with the Panel’s determination on misconduct, impairment or sanction and so the Appeal was dismissed.
Court of Appeal
Dr Schodlok was initially granted permission to appeal to the Court of Appeal on only 1 ground, namely whether HHJ Sycamore had been wrong to restrict the initial appeal to the 6 findings of serious misconduct. When the matter came before Lord Justice Moore-Black, Lord Justice Beatson and Lord Justice Vos for consideration on 30th June and 1st July 2015, they considered that it was proper for them to determine whether the Panel took into account the instances of non-serious misconduct when deciding on impairment (‘Issue 1’). Further permission was granted for 2 additional grounds of appeal, namely: the four factual findings of serious misconduct (‘Issue 2’) and the decision that Dr Schodlok’s fitness to practise was impaired and the sanction imposed (‘Issue 3’).
In summary, the Court of Appeal determined Issues 1 to 3 as follows:
- Issue 1: Having reviewed the determination, it could not properly be said that the Panel did not take into account the 6 instances of misconduct when reaching a decision on impairment.
- Issue 2: The findings of fact in relation to the 4 instances of serious misconduct were wrong and none of them can stand. The Court of Appeal found that the evidence submitted did not support the Panel’s findings and so the conclusions reached by the Panel were not, in fact, open to them.
- Issue 3: On the basis of the findings above, the Panel’s decision on impairment was set aside and it was determined that the sanction of Conditions should not have been imposed.
The Court of Appeal allowed Dr Schodlok’s Appeal and remitted the case back to the Medical Practitioner’s Tribunal Service to only re-consider the instances of non-serious misconduct and to consider whether the imposition of a warning may be appropriate.
Comments on Non-Serious Misconduct
At the outset, the GMC also asked the Court of Appeal to consider, as an issue of general importance, whether it is open to a Fitness to Practise Panel to determine, on the basis of a finding of a series of instances of non-serious misconduct, that taken collectively they equate to serious misconduct. Whilst the Court made it clear that it did not consider that it was appropriate for them to express a view on the theoretical possibility of this situation arising, both LJ Vos and LJ Beatson provided an indication of their views on this.
Lord Justice Vos stated: “…I would not think that the possibility of taking such a course in a very unusual case on very unusual facts should be ruled out… In the normal case, I do not think that a few allegations of misconduct that are held individually not to be serious can or should be regarded collectively as serious misconduct…”.
Lord Justice Beatson differed slightly in his view and commented: “…I recognise that a small number of allegations of misconduct that individually are held not to be serious misconduct should normally not be regarded collectively as serious misconduct. Where, however, there are a large number of findings of non-serious misconduct, particularly where they are of the same or similar misconduct, I consider the position is different. In such a case, it should in principle be open for a Fitness to Practise Panel to find that, cumulatively, they are to be regarded as serious misconduct capable of impairing a doctor's fitness to practise.”
Lord Justice Beatson also stated that he considered that the above finding is likely to only be appropriate in cases where the GMC made it clear to the doctor, from the charges or from how the case was presented, that this outcome would be a possibility.
The full judgment can be found here.
This case may be of assistance when dealing with cases involving numerous allegations of non-serious misconduct. However, it is also important to note that it may result in the GMC pleading cases so as to allege numerous instances of non-serious misconduct as amounting to serious misconduct.