LEGAL BRIEFING

Medical staff facing charges of professional misconduct are entitled to have their case heard by an independent tribunal under Department of Health circular (90)9: a fairly elaborate, lengthy and expensive procedure.

Personal misconduct allegations, on the other hand, can be resolved more simply under the same internal disciplinary procedure used for other NHS staff.

But it may not always be easy to say for sure under which heading professional misconduct allegations fall.

An employment tribunal decision last month (Skidmore v Dartford and Gravesham NHS trust) provides useful clarification.

A surgeon was suspended for alleged professional misconduct after investigations into a number of operations which went wrong. Allegations were made that he had misled a patient, the patient's family, the community health council and the trust's chief executive about why a keyhole operation had to be converted to open surgery (he blamed a faulty instrument).

The trust held an internal disciplinary hearing and dismissed the surgeon for gross personal misconduct. He appealed but was unsuccessful. He brought an unfair dismissal claim, arguing that the case should have been treated as professional misconduct. The employment tribunal dismissed his complaint.

His appeal to the employment appeal tribunal was rejected. The tribunal said the first step was to ask whether the allegations related to performance or behaviour arising out of the exercise of the doctor's medical skills. If they did, it was professional; if they did not, it was personal.

Although the opportunity for the surgeon's behaviour arose out of an operation, the circumstances in which the allegations came to be made were personal.