Skidmore (Respondent) v. Dartford & Gravesham NHS Trust (Appellants)
22. Given the interpretation, which I have adopted, it is in truth self evident that lies told by a doctor to a patient about important details of an operation can amount to professional conduct. After all in such a case the medical practitioner is professing to speak as a doctor about a matter covered by his medical skills. The argument to the contrary on behalf of the Authority must be rejected.
X. THE OUTCOME.
23. I conclude that in breach of contract the Authority adopted the wrong procedure. I would therefore dismiss the appeal. In the result the decision of the Employment Appeal Tribunal is quashed and the matter is remitted to an employment tribunal to reconsider the complaint of unfair dismissal on the basis that the Authority employed the wrong procedure.
24. I agree that the appeal should be dismissed for the reasons set out in the speech of my noble and learned friend Lord Steyn. I add a few words of my own merely in the hope of giving assistance in the future application of the scheme of categories of conduct set out in the Department of Health Circular HC (90) 9.
25. Paragraph 3 of the Circular explains that authorities had sometimes had great difficulty in defining the nature of the conduct in question. The expressions "personal conduct", "professional conduct" and "professional competence" required in particular concentration upon the particular words "personal" and "professional" and the making of some kind of distinction between them. Clearly these terms would be hard to apply precisely and grey areas could easily be identified where the terms could overlap. Those difficulties were sought to be overcome by the Circular. The guidance which it gave had the effect of moving the attention away from the former expressions and onto the agreed definitions of the categories of conduct. One importance of this was that the words "personal" and "professional" are no longer of importance in themselves. The new guidance would work equally well if the three categories were identified as "type A conduct", "type B conduct" and "type C conduct". The expressions "personal conduct" and "professional conduct" and "professional competence" have become simply labels, serving only to identify categories which have now been fully defined.
26. The categories must be taken to be exhaustive of all kinds of conduct which might attract disciplinary attention. While it is a threefold categorisation there are only two forms of procedure which may follow. The expression "due to factors associated with" is not a very happy one. But to make the scheme coherent and exhaustive of all cases which may be subject to disciplinary procedure the two main cases must be those where the conduct is due to factors associated with the exercise of medical or dental skills and those where the conduct is due to factors other than those associated with the exercise of medical or dental skills. That latter case is labelled "personal conduct" and attracts the procedure appropriate for such cases. If the conduct is due to factors associated with the exercise of medical or dental skills it will fall into one or other of the two groups which bear the respective labels of "professional conduct" and "professional competence". In relation to the task of making a choice between the second and third kinds of conduct, consideration has to be given to the matters of adequacy and professional judgment which characterise the third kind of conduct. But that choice is not of consequence for the basic distinction in procedure. Both the second and the third kinds of conduct call for the more elaborate processing of the case.
27. While I do not for a moment suggest that there is only one way in which one must go about the task of deciding which category applies in any particular case, I would prefer first to ask the question whether the conduct complained of is due to factors associated with the exercise of medical or dental skills. One must look at the conduct in question and ask whether it has come about through factors associated with the exercise of medical or dental skills. I agree with my noble and learned friend Lord Steyn that a broad approach is appropriate. If there is such an association then the further question may be asked whether it is matter of conduct or of competence within the meaning of the second and third definitions. If it does not fall into the third category as matter of the adequacy of the performance of a practitioner related to the exercise of medical or dental skills and professional judgment then it must fall into the second category. But in either case the more elaborate procedure will have to be followed. If on the other hand there is no such association then the case will be one for the less elaborate procedure designed for cases in the category of "personal conduct".
28. Approaching the present case in this way it seems to me clear beyond doubt that the conduct in question was due to factors associated with the respondent's exercise of medical skills and so did not qualify under the heading of "personal conduct".
29. I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Steyn. For the reasons he has given, with which I am in full agreement, I too would dismiss this appeal and make the order which he proposes.
LORD SCOTT OF FOSCOTE