D was suspended for nine months after she breached an undertaking to agree to a professional performance assessment. She appealed against the decision to suspend her.
D was an out-of-hours doctor who, after a number of patient complaints, had a GMC performance assessment in 2007. Following the assessment, practice conditions were imposed, but were lifted after D agreed to a set of undertakings. One of these required D to undergo an assessment of her professional performance by an assessment team at a date to be specified by the Case Examiner. Another required her to be supervised by a GP trainer. However, D failed the entry assessment for the GP training course.
In 2009 D was invited to undergo assessment as required by the undertaking, but she failed to agree to do so. The GMC Registrar referred her case to the Fitness to Practise Panel who found that her performance was deficient, putting patient safety at risk, and that she had committed misconduct by breaching the undertaking. As a result of these findings, the Panel concluded that her fitness to practise was impaired, and suspended her from practice for nine months.
D argued that the assessors had gone beyond their mandate. They considered her performance in areas other than as an out-of-hours doctor, where she worked, and improperly relied on her training programme entrance test score in finding that she presented a risk to patient safety. She also said that the invitation for a reassessment had been contrary to the GMC rules (which required a deterioration in performance), that the undertaking did not require her to agree to an assessment until after assessors had been appointed, and that there had been insufficient evidence to support the Panel’s findings of deficiency and misconduct.
The Court determined that it was appropriate for the Panel to consider D’s professional performance and it was not limited only to her work as an out-of-hours doctor. It was also appropriate that the Panel took into account that the doctor who had carried out her assessment would not place D in a training practice because of concerns for patient safety. The Court also held that the request to submit to a reassessment was appropriate and the undertaking clearly required D to notify the GMC if she agreed to an assessment, so that assessors could be appointed. Breach could take the form of refusal or failure to attend after the appointment was set, refusal to consent to an assessment after being invited to do so, or refusal or failure to provide the information requested by the GMC needed to enable assessors to be appointed. Given that the purpose of the reassessment was to measure D’s performance, and having regard to the obvious impact on patient safety, a unilateral refusal or failure to participate when requested was capable of constituting misconduct, and impairment by reason of that misconduct.
The Court considered that the Panel was correct in its decision and it had correctly approached the sanction by starting with the lowest level and working its way up. Anything less than suspension would have been unjustified.
Gabriella Depner v General Medical Council (2012) QBD (Admin) (Stadlen J) 04/05/2012
