Lord Justice Elias and Justice Keith ruled that the doctors responsible for the "biggest crisis in the medical profession in a generation" were immune from an investigation of misconduct because their conduct was not disreputable or of a kind which justified moral censure. And they ruled that the doctors responsible for this "disaster" were immune from a GMC deficient perfomance investigation because the functions that they were exercising were too remote from the practice of medicine to bring them within the scope of the relevant legislation.

It is now generally recognised that MTAS - the recruitment process for junior doctors introduced in 2007 - was a deeply flawed scheme. A study conducted by the Dean of the Royal College of Psychiatrists of some 790 junior doctors found that they showed an increased risk of suicide and other psychiatric morbidity resulting from stress, and that their loss of morale may well have adversely affected patient care. It was comprehensively examined in a number of public investigations and a judicial review which had concluded "The premature introduction of MTAS has had disastrous consequences".

Remedy wrote to the GMC asking for the doctors responsible for it to be investigated by the Fitness to Practice committee. The GMC declined to do this, and Remedy sought a judicial review of this decision. In rejecting the judical review the the judges stated:-

"The fact that the committees on which they serve also include administrators with no medical background is indicative of the fact that they are not operating in the traditional professional sphere. That is not, of course, to say that these doctors should not be accountable for their actions, or even that it would necessarily be wrong or inappropriate for the GMC to make representations as to their suitability to remain in post. But in my judgment, they cannot be held accountable in the manner the claimant seeks, that is through the GMC’s fitness to practise procedures. The functions being exercised here are too remote from the profession of medicine to bring them within the scope of section 35C(2)."

They contrasted the case with Roylance and Meadows because "... here the doctors were involved in the functions of government and their medical skills were only indirectly and peripherally relevant to the functions they were performing... There was no sufficiently close link between what they were doing and the profession of medicine. The fact that their medical knowledge and experience might in a general way assist them in the performance of their tasks was insufficient to justify the conclusion that they were exercising the skills of their profession. Administrative tasks will properly fall within the scope of professional practice where they are the kind of day to day tasks which are closely connected to clinical practice, as the Sadler case makes clear, but that is not the kind of administrative act or acts under scrutiny here."

They also rejected the submission that 'whenever the profession is brought into disrepute that of itself is capable of rendering any conduct which causes that consequence to constitute misconduct' . They ruled that the conduct must be "of a kind which justifies some kind of moral censure or involves conduct which would be considered disreputable for a doctor.... Bad judgment does not justify moral censure, particularly where it is the decision of a committee of which the alleged wrongdoer is only one participant."

This appears to completely ignore the GMC’s own Guidance on 'Doctors in Management' (much of which is a dead letter in consequence). It ignores the Medical Schools Council statement of the definition of being a doctor (the inconvenient parts of which are simply ignored) as well as the most difficult parts of the Meadow case. Nor is there any consideration of the apparent weight of damage to the reputation of the profession – this being the 'biggest disaster of a generation'.

Remedy has had discussions with our legal team over the possibility of an appeal. Although there may well be grounds for appealing we have decided with great regret that we cannot take this forward. We have reached this decision solely on the issue of costs. The hearing today was cost-capped at £22,500 - we were therefore startled to find that the GMC's costs are said to be £45,673.60 - more than double the PCO cap. The GMC have given no explanation as to why it was necessary to incur such costs. If Remedy were to go to appeal then we would not have the benefit of a cost-cap, and would run the risk of financial ruin. We are not prepared to take this risk.

In the meantime appeal lawyers across the country are rubbing their hands in glee at the loopholes that this ruling will have created.

We are immensely grateful to the all the individual doctors who gave us money and support. We are sorry to have let you down.

Matt Jameson Evans, Remedy co-chairman, said "This is the worst possible outcome for ordinary doctors. We had always suspected that there was one rule for 'them' and one rule for 'us'. Now we have it confirmed."

The full judgement is at http://www.bailii.org/ew/cases/EWHC/Admin/2010/1245.html