Fitness to Practice

MISCONDUCT

1. Misconduct is, and remains, the basic concept for disciplinary proceedings being commenced against a member by his or her professional regulatory body. Misconduct is said to be the oldest and perhaps still the most widely used form of allegation. Misconduct leaves it to the disciplinary tribunal to decide its ambit in any particular case, as opposed to individual offences of narrow scope: Disciplinary and Regulatory Proceedings, Fifth Edition (2009) by Brian Harris OBE QC and Andrew Carnes at para 4.02. The earlier terms “infamous and disgraceful” conduct or “serious professional misconduct” have largely given way to the use of the word “misconduct” or the words “professional misconduct”.

2. In Roylance v. General Medical Council (No 2) [2000] 1 AC 311, at p330, the Privy Council said:

“The expression “serious professional misconduct” is not defined in the legislation and it is inappropriate to attempt any exhaustive definition. It is the successor of the earlier phrase used in the Medical Act 1858 “infamous conduct in a professional respect”, but it was not suggested that any real difference of meaning is intended by the change of words. This is not an area in which an absolute precision can be looked for. The booklet which the General Medical Council have prepared, “Professional Conduct and Discipline: Fitness to Practise” (December 1993), indeed recognises the impossibility in changing circumstances and new eventualities of prescribing a complete catalogue of the forms of professional misconduct which may lead to disciplinary action. Counsel for the doctor argued that there must be some certainty in the definition so that it can be known in advance what conduct will and what will not quality as serious professional misconduct. But while many examples can be given the list cannot be regarded as exhaustive. Moreover the Professional Conduct Committee are well placed in the light of their own experience, whether lay or professional, to decide where precisely the line falls to be drawn in the circumstances of particular cases and their skill and knowledge requires to be respected.”

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