Doctors Behaving Badly: Professional Regulation and the Tilt Effect(s) of Public Protection Appeals

Regulation in healthcare has often been accused of protecting the professions and neglecting patients. ‘Public protection appeals’, used to challenge fitness to practise decisions considered to be ‘insufficient’ for the ‘protection of the public’, have created a welcome space for judicial scrutiny. Focusing on doctors, the present study of public protection appeals examines the contours of that scrutiny. It frames these appeals as a recalibration of the metaphorical ‘regulatory bargain’, finding that many of the resulting judgments signal a departure from traditional postures of ‘deference’ in professional regulation jurisprudence and a steady judicial assertion of jurisdiction over the core issue of ‘seriousness’ in doctor misconduct. Further exploration of that heightened scrutiny identifies several strands of new doctrine which fortify the regulatory regime in a variety of directions. This exploration also, however, isolates and critiques the emergence of a ‘Bolton gloss’—a seam of cases which tilt decision making towards censure and risk disrupting regulatory strategies which have cultivated a commitment to rehabilitative approaches in the disciplinary process.