2025-01-22 17:39:20
Dr Sarah Benn is a climate activist. She took part in Just Stop Oil protests despite High Court injunctions forbidding her from doing so. As a result, the High Court imposed a prison sentence for contempt of court. She then appeared before the Medical Practitioners’ Tribunal where she was found guilty of misconduct that impaired her fitness to practise. A 5-month suspension was imposed.
Dr Benn’s appeal was heard by Mrs Justice Yip in Benn v General Medical Council [2025] EWHC 87 (Admin).
Amongst other things, Dr Benn argued that the Tribunal had been wrong to conclude that the overwhelming majority of the public would not condone breaking the law in the way that Dr Benn did. The judge made a number of observations on what constitutes misconduct for fitness to practise purposes. She said:
“The starting point then is to look to the current statutory scheme itself. Under the current provisions, “misconduct” is one of the grounds upon which a finding that a person’s fitness to practise is impaired may be made. The misconduct must therefore be of a nature that is capable of giving rise to a finding that fitness to practise is impaired. Plainly, not everything that may be described as misconduct in a dictionary sense will meet that test. The context is provided by the regulator’s over-arching objective [of the protection of the public]. If the conduct in question does not threaten to undermine one of the objectives set out in [the legislation]*, it cannot be viewed as “misconduct” in the statutory sense. Viewed in that way, the misconduct must be serious and must have some link to and/or impact on the profession of medicine if it is to meet the statutory test.
Reviewing the authorities, Mrs Justice Yip approached the issue of misconduct on the following basis:
- Whether any particular conduct amounts to misconduct for the purpose of the statutory regulatory scheme is to be determined by reference to the wording of the scheme itself…
- There are no fixed categories of what is and is not capable of amounting to misconduct.
- It should be recognised that the conduct relied upon in this case occurred outside [professional] practice and in the context of [the registrant’s] private life. That fact does not result in the application of a wholly different test but it is a relevant factor which must be considered in making the assessment within the statutory framework.
- Focus on the statutory provisions and the guidance set out in [the regulator’s professional standards] is important to avoid overreach into the personal lives of those who are regulated.
- Conduct committed outside [professional] practice that is disgraceful, immoral or outrageous may fall within the definition of misconduct for the purposes of the statute. While these are examples of statutory misconduct, they do not define the test.
- Conduct wholly outside [professional] practice is only capable of being considered misconduct within the meaning of the statute if it is conduct capable of undermining one of the [statutory] objectives…
- Focusing on those objectives fulfils the requirements that there is a link to the profession…and that the misconduct is serious. Misconduct in a dictionary sense that has no bearing on the statutory objectives cannot be considered to have a link to the profession and so will fall outside the scope of regulation.
- In this case, the relevant objectives [were] (b) maintaining public confidence in the medical profession and (c) maintaining proper professional standards and conduct for members of that profession.
- Not all conduct that would generally be regarded as wrong, or even disgraceful, will tend to undermine public confidence in the profession. Where the line lies is generally a matter for assessment by the Tribunal but such assessment must have a proper basis.
- [The regulator’s standards are] the core guidance on professional standards for all registered…professionals. Regard must therefore be had to it, particularly in assessing whether the conduct in question may undermine proper professional standards and conduct.
- Appropriate deference is to be afforded to the judgment of the Tribunal, but the weight to be given to assessments relating to conduct wholly outside [professional] practice may be less than in cases involving clinical performance
The judge found it unhelpful to look at arguments on whether doctors should be required to uphold the rule of law. She said:
“A doctor cannot be permitted to deliberately act outside the law, nor can anyone else. The rule of law applies to everyone.”
The judge pointed out that the rule of law had been addressed by the sentence imposed by the High Court for contempt of court.
Before the Tribunal, Dr Benn had relied on her motivation, and had invited the Tribunal to endorse her views on the climate emergency. However, the judge held that it was Dr Benn’s conduct, not her beliefs, that had led to her appearance before the Tribunal. The judge went on to say:
“The motivations that underpinned Dr Benn’s conduct undoubtedly have a significant role to play in considering whether Dr Benn’s fitness to practise is impaired but they do not convert that which is otherwise obviously misconduct into something less.”
Dr Benn’s appeal was dismissed.
*The objectives in the Medical Act 1983 are:
(a) to protect, promote and maintain the health, safety and well-being of the public,
(b) to promote and maintain public confidence in the medical profession, and
(c) to promote and maintain proper professional standards and conduct for members of that profession.
The objectives in the Pharmacy Order 2010 are the same, but with the addition of:
(d) to promote and maintain proper standards in relation to the carrying on of retail pharmacy businesses at registered premises.