Kumar v GMC [2012] EWHC 2688 (Admin)

The Administrative Court found that the giving of deficient expert evidence by a regulated professional may amount to misconduct, even without bad faith or recklessness on the part of the professional.

K, a consultant psychiatrist, had been instructed to give evidence for the defence in a murder trial. The defendant was convicted after the jury rejected the defences of lack of intent and diminished responsibility which had been put forward after K diagnosed the defendant as suffering from Intermittent Explosive Disorder (IED). The trial judge concluded that K had at times shown an embarrassing lack of professionalism and referred K to the General Medical Council (GMC), which charged him with misconduct.

A GMC fitness to practise panel (the panel) made a number of findings, including that K had:

  • failed to disclose that he had no previous experience of acting as an expert in a case of homicide
  • failed to mention in reports that he had not read the prosecution witness statements
  • not made clear that IED was a controversial diagnosis
  • not taken proper account of various diagnostic criteria when making his diagnosis.

The panel found K guilty of misconduct and of acting recklessly in a number of respects and concluded that his fitness to practise was impaired. It suspended him for four months.

On appeal to the Administrative Court, K submitted that the panel's findings of recklessness had been wrong. The court rejected his arguments and, in the course of doing so, stated that the Court of Appeal’s comment in GMC v Meadow ([2006] EWCA Civ 1390) - namely that the giving of honest, albeit mistaken, expert evidence will rarely amount to misconduct - did not mean that misconduct could only arise in cases where recklessness or bad faith were proven. The court also noted that the overriding test remained that in Preiss v General Dental Council [2001] 1 WLR 1926:

'It is settled that serious professional misconduct does not require moral turpitude. Gross professional negligence can fall within it. Something more is required than a degree of negligence enough to give rise to civil liability but not calling for the opprobrium that inevitably attaches to the disciplinary offence.'

The court went on to say that the giving of evidence in court or the preparation of a report for use in court may be of such a nature or degree of incompetence or negligence as to amount to misconduct without bad faith or recklessness.

K submitted that his fitness to practise was not impaired because he would confine his activities as an expert to family cases, where he had considerable experience, and had undertaken courses to remedy his deficiencies as an expert witness. He also produced testimonial evidence as to his clinical work and as an expert in family cases. However, the court agreed with the panel, which had found that K's actions had been 'so outstandingly bad' that it was satisfied that his fitness to practise was impaired.