High Court gives guidance on the adequacy of samples in cases of deficient professional performance.

Judgement date: 02 May 2014

Background

The appellant Doctor (D) appealed against a decision of the General Medical Council’s Medical Practitioners Tribunal Service (the Panel) to suspend his registration for a period of 9 months following a finding of impairment by reason of deficient professional performance.

This finding was based in no small part on the outcome of a Performance Assessment which rated D’s performance as ‘unacceptable’ in the following areas:

  1. Assessment;
  2. Treatment;
  3. Patients, and;
  4. Record Keeping.

Appeal

D ultimately appealed on two grounds, these being:

  1. The fairness of the procedure used by the assessors in relation to the selection of sample cases;
  2. The choice of the Panel to impose a suspension as opposed to conditions.

In respect of the first ground of appeal it was submitted that the case studies used by the assessors were not a fair representation of the work D had carried out over a number of years. Various further submissions were made articulating precisely in what manner the sample was unfair.

In respect of the second ground of appeal it was submitted that the Panel had misconstrued evidence by a witness suggesting that D needed a break, had not had sufficient regard to D’s interests and desire to work and had failed to take into account the evidence of the majority of experts, who it was said, had felt conditions would be sufficient to protect the public.

Decision

In respect of the first ground it was held with regard to the adequacy of a sample that, ‘to be admissible and probative a sampling exercise does not ... have to be perfect’ [29].

Further the Court was clear that ‘A less than optimal sample might still generate worthwhile results’ [29] and that what is required of a sample is simply that it be ‘the best it can be’ and that it ‘meet a basic threshold of relevance’ [29]. The Court was clear that if the sample is less than perfect ‘that does not mean the evidence is worthless’ [29].

As to whether a sample is less than optimal and what conclusions can be drawn as to its adequacy those it was held is ‘quintessentially matters of clinical judgement’ [29]. By long standing tradition the Court is loath to interfere with matters of professional/clinical judgement preferring to leave that analysis to specialist tribunals with the professional and/or clinical experience to make those judgements.

In respect of the second ground of appeal it was noted that the Panel had set out succinctly its views on the credibility of each expert and the weight it had placed on their evidence. It was held that the succinctness with which the experts were dealt with could not be criticised and that there was, ‘no need to include a blow by blow, forensic analysis of the evidence’ [40].

With regard to the Panel’s determination that D was not fit to return to work, it was held that the Panel were entitled to form this view on the basis of the witness evidence they had heard, the view they formed of D’s insight and their acceptance of his deficient performance. The Court characterised the Panel’s decision was falling ‘four square within the centre of its area of expertise’ [42]

The appeal was dismissed

A useful case which makes clear that simply because a sample is ‘less than optimal’ this does not mean it is ‘worthless’.