Yes it can and it risks referral to the MPTS for a hearing.
A hospital car park was operated by a private company. A doctor undertaking a placement at the hospital paid for 3 months parking but was routinely unable to access the car park. An “ugly and explosive incident” arose when the doctor spoke with members of the parking staff. It was alleged that the doctor had used aggressive, threatening and abusive language towards several members of parking staff. In what must surely count as one of the High Court’s most swear laden paragraphs, His Honour Judge Richard Williams at paragraph 6 of his judgement sets out the litany of ejaculations said to have passed during the discourse between the doctor and the parking staff on the 17th May 2017.
The unfortunate doctor faced a ten day MPT Hearing which resulted in him receiving a warning in the following terms:
“On 17 May 2017 you were involved in an incident in a hospital car park in Birmingham during which you used language and made a gesture, both of which were offensive and insulting. This conduct does not meet with the standards required of a doctor. It risks bringing the profession into disrepute and it must not be repeated. The required standards are set out in GMP and associated guidance. Whilst your conduct has not resulted in any restriction on your registration, it is necessary in response to that conduct [to] issue this formal warning”.
The doctor however challenged the Tribunal’s decision in the High Court and was successful in doing so. The decision that he was guilty of misconduct and the warning were both quashed by the High Court. The Tribunal decision was set aside on the grounds that the Tribunal did not sufficiently explain their conclusions. The doctor was described “as a softly spoken man, who appeared unlikely to get involved in this sort of incident. This was reflected in several testimonials which he adduced”. The accounts given by the four GMC witnesses were said to not be “particularly consistent with one another”. One of the GMC witnesses “elaborated aspects of her evidence”, another was “somewhat unsatisfactory” and “little actual recollection” with the other, though he “came across well… his oral evidence did not closely reflect his original statement”. The error that the Tribunal fell into was to not give a sufficient explanation for their findings and it seems it was not clear why they preferred one account over another. The judgement sets out that the doctor complained about the rude and aggressive behaviour by the car park staff towards him and they were alleged to have used language similar to that allegedly used by him. There was no CCTV evidence nor mobile phone footage.
No challenge was taken in respect of the principle that the alleged foul language and lewd gestures met the threshold for the investigation. As the Tribunal’s warning makes clear the facts led the Tribunal to find the conduct brought the profession into disrepute. The thrust of the doctor’s submissions before the High Court related to unsafe findings and conclusions based on questionable evidence. The Judgement includes the important argument that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the Court concludes that the allegation is established on the balance of probabilities.
The doctor was able to meet the high threshold set for a judicial review to successfully challenge the warning after what appears to be more than four, no doubt difficult, years. His case serves a sad though useful reminder of how something relatively trivial in a doctor’s private life can become a much more significant regulatory problem. Please do contact us if you have any queries about your fitness to practice or conduct issues.
