The Remedy judicial review being heard on 11 May could drive a coach and horses through the meaning of misconduct, and the meaning of unfitness to practice.
Doctors who are involved in management will be anxiously awaiting the verdict, since they may find themselves personally liable for their managerial decisions in future. And appeal lawyers across the country will be looking to the judgement to see whether the GMC has opened the floodgates for them.
Doctors are always happy to whinge about their managers, but serious action against doctors in management is rare. The GMC has only taken action in a handful of cases. One such case was that of Dr Roylance - the chief executive caught up in the Bristol babies cardiac surgery storm.
The MTAS recruitment process was a unique disaster. Some of the superlatives used at the time still stand out; it was described as the “biggest disaster” in a generation, and the anger it generated has still not subsided. So when Remedy wrote to the GMC asking for the senior doctors responsible for it to be referred to a fitness to practice committee then they hoped that the case would be duly investigated.
But the GMC politely declined the opportunity to hold such an inquiry. At this point Remedy reached for their lawyers, and challenged the GMC to defend themselves in court.
The case raises significant issues well beyond the events of 2007. At the heart of it lies the prickly and complex issue of what constitutes unfitness to practice. What sort of actions outside the clinical arena will render a doctor unfit to practice as a medical practitioner? The GMC have defended themselves on the grounds that:
Whatever the conduct of [The Proposed Defendants] with regard to MTAS, I do not consider that it can sensibly be said to impinge on their fitness to practise as medical practitioners.
Yet this seems to be at odds with many previous rulings. There are many doctors who have been removed from the medical register for what has been referred to as “bringing the profession into disrepute” and for “conduct unbecoming of a doctor”. And if, for example, the doctors under investigation had knowingly breached the laws affecting international medical graduates then would the GMC still be arguing that this had no effect on their ability to work as doctors?
There has never been a case of deficient professional performance brought against a doctor for managerial issues. If Remedy is successful then this verdict will send a cold chill down the spines of medical directors and doctors working for health authorities - especially in an era of financial uncertainty.
The case is being heard in the High Court on 11 May - five days after the general election. Remedy has created a Facebook group for supporters of their case. If you agree with us, please attend court or, failing that, express your support.
This verdict is going to be studied by medico-legal bodies for many years to come.
