Doctor’s Acquittal Overturned

Originally published in September 2004

The Council for the Regulation of Healthcare Professions (‘the Council’) is the new overarching body which examines the work of nine regulatory organisations including the General Medical Council (GMC), the General Dental Council and the Nursing and Midwifery Council. Its powers emanate from the National Health Service and Health Care Professions Act 2002 (‘the Act’).

Section 29(4) of the Act allows the Council to refer decisions of the disciplinary committees of the nine regulatory bodies concerned to the High Court if it considers that the decision was ‘unduly lenient ... and .... it would be desirable for the protection of members of the public’. The policy behind this is to provide some mechanism to 'appeal' an over-lenient decision, just as a practitioner can appeal against a decision which is too severe. However, it was envisaged by John Hutton MP who introduced the Bill that "....the power will need to be used only in exceptionally rare circumstances".

What Mr Hutton did not make clear is whether or not it was intended that the power of the Council should extend to cases in which practitioners have been acquitted, as opposed to being sentenced too leniently after conviction.

The Council's own consultation paper questioned whether the Council had the power to refer acquittals. It noted in particular that the list of relevant decisions set out in s.29(1) did not sit easily on this point as this suggests that the Council can only refer those decisions made after a finding of serious professional misconduct. The Council happily concluded that ‘however that matter is resolved, it should not affect many cases which are likely to be of concern’. As it so happens, the very first case to be referred by the Council involved precisely this issue.

RadcliffesLeBrasseur were instructed by the Medical Protection Society in this first case challenging the remit of the Council's new powers. This article summarises the difficulties in assessing the scope of the Council's powers and the potential impact (and injustice) they may have on health care professionals.

In October 2003, Dr Ruscillo attended a disciplinary hearing before the Professional Conduct Committee of the GMC on a charge of serious professional misconduct. It was alleged that he had had an affair with a patient. As the GMC had been investigating the case for nearly 18 months, it was surprising that the prosecution did not take the opportunity of calling any witnesses at the hearing. Dr Ruscillo was acquitted.

The Council then sought to appeal against this decision, despite the well established principle in English law that there is no general right of appeal against an acquittal. Our firm advice was to resist the appeal, foremost on the grounds of double jeopardy, but also on the basis that as an appeal against acquittal it arguably fell outside the powers conferred on the Council by s.29 of the Act.

The question whether the Council has the power to appeal against an acquittal by the Professional Conduct Committee of the GMC was considered as a preliminary issue in the case by the High Court. As this was the first appeal of its kind, there was (and still is) a lack of regulation and guidance for those involved. The case is therefore of utmost importance for setting a precedent for future cases.

The judge came to the view that it was the intention of Parliament to provide the Council with the widest powers to oversee each of the regulatory body's activities. Finding against Dr Ruscillo, he held: -

• The Council does have the power to appeal an acquittal to the High Court under s.29 of the Act.
• The decision of the disciplinary committee concerned does not have to be wrong. An appeal may succeed on the basis that the committee was not presented with important evidence at the hearing which, if adduced, might have led to a different result.

These findings raise serious issues. Not only does it open the door for double jeopardy, but the judge is effectively also saying that if the prosecution for the GMC fails to produce relevant evidence, then this is a valid ground of appeal. If the Council is allowed to appeal the decision, then Dr Ruscillo will have to face the same charges again. Defendants are normally protected from this by law.

We have no objection to the new powers given to the Council, so long as they are used appropriately. However, if the ruling is left intact, there are dire implications for health care professionals who have been acquitted.

If the Council does not like the outcome of a disciplinary hearing, it can appeal it. Likewise, if it does not like the outcome of a second hearing, it can appeal that as well. There may be no limit to the number of retrials which could potentially take place. In our opinion, this is manifestly unfair and potentially an abuse of process.

We lodged an appeal and the hearing before the Court of Appeal has now taken place; the Court has reserved judgment. We await this in the hope that the Court of Appeal will agree with our views - watch this space! 

© RadcliffesLeBrasseur

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