[1] Is Negligence ‘misconduct’?

Mere negligence cannot be the subject of a disciplinary complaint.¹ Preiss v. General Dental Council [2001] 1 WLR 1926; and Rao v. General Medical Council [2002] UKPC 65; Halsbury’s Laws of England, Vol 74, p. 261, paragraph [262], 5th Ed. [2011].

[2] More than 60 years ago, one Dr Ong Bak Hin performed an abortion on a lady.

This was in Melaka.

She died.

He was struck off the medical register.²Ong Bak Hin v. General Medical Council [1956] 1 MLJ 117, Privy Council

In 2016 a Singaporean plastic surgeon,

Dr Kevin Teh, conducted vaser liposuction³A procedure where sound is amplified to burn fattreatment on a patient:she wished to reduce fat.

Shortly after the treatment, blisters appeared on her body.

Dr Teh told her that her blisters were ‘burns that would heal with proper care’.

They did not.

She ended up in the emergency department of a hospital, with burns on both thighs.

Dr Teh was found guilty of professional misconduct.⁴https://www.straitstimes.com/singapore/health/gp-suspended-for-four-months-by-smc-for-professional-misconduct-and-serious

[3] These are examples of ethical misconduct by professionals that actually resemble negligence complaints

Now, true it is that professionals must exhibit a high degree of skill.

Far more important is that they must also demonstrate a high degree of ethical conduct in their work.

If they do not, they can be hauled up on charges of misconduct.

But a departure from ethical conduct – which is professional misconduct is different from ‘negligence’

This is why, in 2001, a UK case called  Preiss v. General Dental Council  ruled that pure negligence on the part of a professional dentist, cannot amount to misconduct.

In 2002, a similar ruling was made in a case called Rao v. General Medical Council.

Only a court can determine whether a doctor had been negligent.

The determination of the question whether a professional had been negligent is a complex exercise.

That should be left in the hands of experienced judges.

Public pressure attempted to blur this clear line.⁵Walton, Sir John, President of the GMC, in ‘The General Medical Council- its changing role’, of the Medico-Legal Journal, 1985 Vol 53 part 2. Address delivered on 13 December 1984)

Sir John Walton, the then President of the UK’s General Medical Council, explains this in an article called ‘The General Medical Council- its changing role’.

[4].  When can Gross Negligence become Misconduct?

Given that  judges have not all agreed on a universal test for negligence.

There is one test no one wants to abandon.

It was established by Nair J’s decision in Bolam v Friern Barnet HMC 1957 1 WRL 582.

There the court concluded that a doctor might be able to avoid a claim for negligence if he could prove that other medical professionals would have acted in the same way as he had.

A 1992 Australian case,  Rogers v Whittaker 1992 rejected the principle in Bolam.

The Australian court came up with a new principle – all doctors had to demonstrate a level of skill measured against an objective standard.

The debate rages on. So the law in this area is still developing.

So ‘negligence’ can mean one of several things – it could be for example: –

(a) an innocent lack of judgement; or

(b) it could be a failure to measure up to a level of skill expected of a professional in the disputedcircumstance; or,

(c) it could be a situation where there had been a failure to come up to an objective standard.

And the consequence of any one of these three situations causes prejudice to the client.

[5].  Gross Negligence

When negligence has been carried out heedlessly or recklessly, where the professional knows it will prejudice his client– and yet the professional goes on to do something that injures his client anyway, that will amount to ‘something more’ – gross negligence.

Where a professional’s negligence has three qualities it can amount to ‘misconduct’:- where his conduct in the course of his work:

(a) is ‘gross’;

(b) where the conduct departs from his profession’s ethical standards; and

(c) his professional colleagues regard his conduct as being either ‘disgraceful’ or ‘dishonourable’.

You note that for gross negligence, an additional negative state of mind needs to be present: it is not just ‘carelessness’, but something more: perhaps an uncaring attitude  – some lawyers say it is a mental state demonstrating either ‘heedlessness’ or ‘recklessness, but that is a debate we need not get into just now.

[6] Conclusion

And, as late as 2011, the courts still hold to the old rule; that negligence cannot amount to misconduct.⁶ Preiss, supra..