'Wrong standards upheld'

In his 94-page judgment, Mr Justice Kelly ruled the Fitness to Practise Committee (FPC) had applied, and the Medical Council upheld, the wrong standard of professional misconduct in reaching its decision.

The FPC had applied an "expected standards of conduct" test, not the "moral turpitude" standard [ disgraceful conduct] set out until 2004 in all the council's guides on ethical standards for the medical profession, he noted.

The expected standards test was first set out in the 6th edition of that guide, published in 2004, the judge said. It was unreasonable and unfair of the council to apply to the 1998 reports of the doctors a standard which the council itself had not notified or promulgated to the profession until years later.

He also found the council was wrong in law in deciding it could not review the FPC findings of professional misconduct but could only address the issue of sanction. The council was not "a rubber stamp" of the FPC findings and was obliged under the Medical Practitioners' Act to exercise an independent judgment whether the findings should be confirmed or rejected.

The council was not obliged to rehear evidence put before the FPC but was obliged to consider arguments, given conflicting evidence tendered to the FPC, why the FPC should not have found as it did. This was particularly important because, in cases where the council imposed no sanction on doctors found guilty of professional misconduct, there was no right to appeal the merits of that decision.

The judge said the highest standards of natural justice should apply where the allegations against the doctors were very serious and their whole professional standing was at stake. The doctors were entitled to expect that justice would be done and would be seen to be done.

He also ruled the council, in deciding only to address the issue of sanction, had acted on incorrect legal advice and had followed a defective procedure in getting that advice.

He noted the legal advice seemed to indicate the council should not consider the doctors' submissions that the FPC findings should be rejected. It was wrong that such advice was given to the council in the absence of the two obstetricians and their counsel and that it came from the council's own registrar (who had instructed counsel in presenting the case against the obsetricians to the FPC) and in-house lawyer.

While he was not saying the advice was biased, there was a perception of bias, the judge said. It was also wrong that the advice was given only to the council president and vice-president, who then conveyed it to the other council members. All council members should have received it at the same time.

It was also wrong in law and "objectionable" for the council to allow members of the FPC, who had found against the doctors, to sit as members of the council to consider their own FPC report.