In professional disciplinary proceedings, any sanction should balance the public interest with the interests of the professional whose reputation and livelihood is at stake. In two recent cases, courts have overturned orders prohibiting a return to practise on the basis that such a sanction was disproportionate; or, as WS Gilbert might have put it, the punishment did not fit the crime. In both, the question was whether the conduct complained of impacted on a doctor’s professional competence.

The first case concerned a psychiatrist who had fallen seriously short of the standards expected of an expert witness but whose clinical ability was not in question. The second involved a vet who had been struck off following convictions for assault and dishonesty offences which were found to have little bearing on his ability to practise.

Dr Pool was instructed to prepare a psychiatric report on a health professional who was, ironically, accused of being unfit to practise. He subsequently gave evidence at her hearing before the HPC. Unfortunately, his opinion was inadequately reasoned and went beyond that which he was qualified to give. This resulted in he himself being referred to a fitness to practise panel of the GMC.

The GMC found Dr Pool guilty of misconduct and suspended his registration for three months. On appeal (Pool v General Medical Council [2014] EWHC 3791 (Admin)), the High Court substituted a conditions of practise order which limited his ability to act as an expert witness for three months, but did not otherwise restrict his practice.

Lewis J regarded a blanket suspension as disproportionate in light of the fact that the only area of concern related to Dr Pool’s ability to give evidence as an expert witness. His clinical competence was not in question. Lewis J said ‘Proportionality requires that there is a reasonable relationship between the penalty imposed and the misconduct giving rise to the impairment. In the present case, the imposition of a sanction which not only addressed the need to ensure that doctors did not act in fields outside their professional competence, but also prevented them from acting in areas within their professional competence and from carrying on their clinical practice was disproportionate.’

Likewise, in Royal College of Veterinary Surgeons v Samuel [2014] UKPC 13, professional competence was never in issue. In the heat of a quarrel about building work, Dr Samuel grabbed his neighbour and twisted her arm in order to wrest from her the camera she had been using to take pictures of him. He pleaded guilty to common assault, threatening behaviour and theft of the camera. The Magistrates gave him a community service order and a suspended prison sentence. The matter came before the Disciplinary Committee of the RCVS. The Committee took the view that the convictions undermined public confidence in the profession and rendered Dr Samuel unfit to practise veterinary surgery.

On appeal the Privy Council took a very different view. Though acknowledging the doctor’s behaviour was reprehensible it stressed that it took place in the context of temporary loss of self-self-control in an angry flare up with a neighbour. If the public knew the full facts – which included an allegation that he had been provoked by racial abuse - it might well think they had little bearing on his fitness to practise as a vet. The Privy Council criticised the RCVS for being overly influenced by the fact Dr Samuel had received a suspended prison sentence. It concluded that the finding of unfitness to practise could not stand; further, that in any event a striking off order was disproportionate.

It seems that, just like the Mikado boasted of his ability to match the punishment to the crime, disciplinary tribunals should consider whether the sanction matches the nature of the misconduct in question.