In Schodlok –v- General Medical Council, an orthopaedic registrar faced a fitness to practise hearing over allegations that she was rude and verbally aggressive to colleagues. The panel found that four allegations of serious misconduct and six of non-serious misconduct had been proved. They found that her fitness to practise was impaired. They imposed conditions on her practise including attendance at a lengthy anger management course.
Dr Schodlok appealed, first to the High Court and then to the Court of Appeal. She argued that the panel had heard insufficient evidence to find serious misconduct proved and that they had wrongly relied on the non-serious misconduct in finding her impaired. Only serious misconduct could impair fitness to practise (Roylance –v- General Medical Council, 2000). She also asked the court to address whether repeated non-serious misconduct could ever amount to serious misconduct.
The court upheld both of Dr Schodlok’s arguments and set aside the finding of impairment. There was no direct evidence that the serious misconduct had occurred as alleged. The panel had wrongly based their findings on an inference and failed to give weight to supportive expert evidence.
Lord Justice Vos held that the panel had taken the non-serious misconduct into account, despite acknowledging that they must not do so. They had stated their main concern was about Dr Schodlok’s “behaviour towards professional colleagues, particularly towards subordinate staff members.” Their use of the plural exposed their error, as the serious misconduct was against one colleague only. The decision on impairment could not stand and Dr Schodlok’s conditions were quashed.
That was enough to dispose of the appeal. But the court then turned to the matter of principle: could the GMC ever roll up several episodes of non-serious misconduct into one charge of serious misconduct? Their lordships said they should be hesitant to express their views since they did not need to decide the point – but then expressed their views anyway.
Lord Justice Vos’s answer was that “in a very unusual case on very unusual facts” the possibility should not be ruled out.
Lord Justice Beatson was less sceptical. Provided the GMC makes its intention clear from the charge, they should be able to treat allegations of non-serious misconduct collectively. That is particularly so where there is a large number of findings of the same or similar non-serious misconduct.
This case therefore reminds us that two wrongs don’t make a right – but in the right circumstances, they might make a serious wrong.