Case Update: GMC v Donadio (2021).

Laura Bayley considers GMC v Donadio [2021] EWHC 562 (Admin)

Introduction

Dr Donadio, a consultant radiologist, was referred to the GMC after failing a performance assessment, for reasons related to a health condition. Interim Conditions of Practice were imposed requiring Dr Donadio (amongst other conditions) not to work at consultant level and to be directly supervised in all of his posts. It transpired that Dr Donadio had worked for a relatively short period of time in breach of a number of his conditions, including the two listed above. The GMC brought proceedings against him in the MPT alleging breach of his interim conditions order. Dr Donadio did not attend the hearing and was not represented. The Tribunal found factual particulars proved, including that the breaches, committed with knowledge of the conditions, were committed dishonestly.

Findings of serious professional misconduct and current impairment followed. The MPTS considered the Sanctions Guidance and imposed a period of 12 months suspension from practice, with a review, finding that the misconduct fell just short of being fundamentally incompatible with continued registration. The GMC appealed the sanction decision on the following grounds:

1. the MPT’s failure to erase Dr Donadio fell outside the range of sanctions open to it, given the gravity of the misconduct; and
2. the MPT failed correctly to apply the Sanctions Guidance and hence made an error of principle.

Decision

The High Court allowed the appeal and quashed the sanction determination, giving the following reasons:

"...the MPT in this case made an error of principle in its sanctions evaluation resulting in an insufficiency of reasoning for departure from the Sanctions Guidance. That is a serious irregularity vitiating the justice of its conclusion" [71].

Before doing so, Mrs Justice Collins Rice set out an interesting review of the principles applicable to appeals against sanction decisions, and suggests a new approach to sanction decisions in cases concerning regulatory breaches.

• The Court reminded itself that the need for ‘diffidence’ to GMC decisions was limited, noting "an appellate court can more readily depart from an MPT assessment of the effect on public confidence of misconduct which does not relate to professional (clinical) performance." (Khan v GPC [2016] UKSC 64 , [2017] 1 WLR 169 at paragraph 36, followed) [22].
• An appellate court ought to "avoid narrow textual analysis when considering the reasoning of any tribunal, especially one not composed of professional judges (GMC v Awan [2020] EWHC 1553 (Admin), at paragraph 26). The determination needs to be read fairly, and as a whole, to assess the sufficiency of its reasoning (GMC v Saeed [2020] EWHC 830 (Admin) at paragraph 75)."
• A tribunal should have proper regard to its Sanctions Guidance, and "apply it as its own terms suggest, unless the tribunal has sound reasons for departing from it – in which case it has to state those reasons clearly in its decision" [33].
• Charging dishonesty in cases such as these gives rise to a risk that a Tribunal will fail to fully address the seriousness of the misconduct behind the breach of conditions. "The risk to the public is that the doctor will practise contrary to their registration or licence status" [58].
• This was not just any regulatory breach. "It was a breach of an order imposed directly on Dr Donadio, after regulatory and legal process examining the specifics of his case, placing detailed restrictions on his registration... The necessary preconditions for the protection of the public and for public confidence in the profession were not fulfilled" [62]. The regulatory breach was knowing and deliberate.
• Aggravating factors included:

1. Dr Donadio denied knowledge of the Interim Order Tribunal determination;
2. He demonstrated a lack of candour and a lack of insight into breach;

• There had been a failure to acknowledge the entitlement of the public to see a consultant radiologist entitled to practise as such;
• "... the lack of submission to a regulatory process he was already personally subject to in a detailed manner adds to the gravity of the breach of the order itself" [63].
• A deliberate breach of specific restrictions imposed personally on doctors is a matter going directly to the overarching objective. "In particular, where a doctor’s registration has been made conditional on compliance with certain requirements, and those requirements are not complied with, it is essential that an MPT deals directly with the conditionality of the doctor’s registration in its assessment of the gravity of the conduct before it, and in its approach to sanction, and demonstrates that clearly in the reasons it gives for its conclusions" [70].

Importance

The case serves as an important reminder of the gravity and seriousness of practising in breach of conditions. Although not expressly set out in the Sanctions Guidance, this judgment suggests that, absent the engagement of the practitioner and a demonstration of insight, erasure is a likely outcome.