England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(MR JUSTICE OUSELEY)

		Royal Courts of Justice Strand London, WC2 Monday, 28th October 2002

1. LORD JUSTICE LAWS: On this application we need not trouble other counsel. We will refuse the application and give reasons for that refusal in the course of our substantive judgments in due course.
(Further argument)
2. LORD JUSTICE LAWS: I will ask Lord Justice Jonathan Parker to give the first judgment.
3. LORD JUSTICE JONATHAN PARKER: This is an appeal by Dr Sengupta, an interested party in judicial review proceedings, against an order made by Ouseley J on 27 April 2001 quashing a decision of the Preliminary Proceedings Committee of the General Medical Council ("the PPC" and "the GMC" respectively) made on 9 September 1999 and promulgated on 30 September 1999. The PPC's decision was that a complaint by the claimants in the proceedings against Dr Sengupta should not be referred to the GMC's Professional Conduct Committee ("the PCC").
4. The claimants in the proceedings are Ms Carol Holmes and Mr and Mrs Derrick Revilo Dean, respectively the common law wife and the parents of Mr Derrick Marcus Dean, who died on 26 July 1995, aged 34. I will refer to the deceased as "Mr Dean". The defendant in the proceedings is the GMC. Joined as interested parties are Dr Sengupta and a Dr Rahman, both of whom attended Mr Dean shortly before his death. As I have indicated, only Dr Sengupta appeals.
5. For some 18 months before his death, Mr Dean had been suffering from very severe headaches, and had been prescribed medication for what was diagnosed as migraine. On 10 July 1995 he attended at his local hospital, where he underwent a series of tests. The hospital advised him to consult his general practitioner as soon as possible. On 24 July 1995 Mr Dean was seen by his general practitioner, Dr Rahman, at his surgery. Dr Rahman diagnosed migraine and prescribed different medication. The following day, 25 July 1995, Mr Dean's condition deteriorated. In the evening of that day Dr Sengupta was called to his home. Dr Sengupta also diagnosed Mr Dean as suffering from migraine, and asked him to attend his surgery the following morning. After Dr Sengupta had left, however, Mr Dean's condition deteriorated still further, and his sister drove him to the local hospital. Later that night he was transferred to the University Hospital of Wales in Cardiff, but he died during the journey. It is common ground that he died from a colloid cyst on the brain. The Death Certificate gave the cause of death as brain swelling due to obstruction, hydrocephalus, and cyst in the third ventricle.
6. In August 1995 Ms Holmes complained to the Mid Glamorgan Family Health Services Authority ("the FSA"), alleging that Dr Sengupta had breached his terms of service as a general practitioner. She later added a similar complaint against Dr Rahman.
7. In March 1996 the Medical Committee of the FSA concluded that Dr Sengupta had, but that Dr Rahman had not, breached his terms of service. Ms Holmes appealed against the Committee's decision in respect of Dr Rahman to the Secretary of State for Wales, who allowed the appeal and directed that the complaint against Dr Rahman be referred to the GMC.
8. In March 1998 Ms Holmes and Mr Dean's father started civil proceedings against Dr Rahman, Dr Sengupta and a third medical practitioner, claiming damages under the Fatal Accidents Act in respect of Mr Dean's death. These proceedings were eventually compromised in July 1999.
9. In the meantime, on 30 July 1998 the claimants requested the GMC to consider the complaint against Dr Sengupta, in addition to the complaint against Dr Rahman.
10. By letter dated 22 October 1999 addressed to the claimants' solicitors, Messrs Graeme John Solicitors, the GMC notified the claimants that it did not intend to take any action against Dr Rahman. The letter informed the claimants that a medical and a lay (i.e. non-medical) member of the GMC had considered the case against Dr Rahman and were satisfied that his actions were reasonable in the circumstances, and that they "did not feel that the errors made on this occasion constituted serious professional misconduct".
11. The complaint against Dr Sengupta was not treated in the same way as the complaint against Dr Rahman, since in Dr Sengupta's case the lay member of the GMC who initially considered the complaint took the view that it should be referred to the PPC (that being the next stage of the Council's investigative procedure in relation to complaints of serious professional misconduct, as I shall explain in a moment).
12. The PPC considered the complaint against Dr Sengupta at a meeting on 9 September 1999. The PPC consisted, on that occasion, of seven members of the GMC. Its Chairman was Dr Robin Steel. The Minute recording the PPC's decision in relation to Dr Sengupta reads as follows:

"W/L [i.e. a warning letter] on the basis that this is a single case, patient had been seen very recently in hospital, doctor offered review in 12 hours and condition difficult for GP to diagnose. But Ctte did not accept he'd carried out an adequate examination and also were critical of the fact that his assessment was not documented. Letter should also say Ctte reinforced decision of MSC [i.e. the Medical Services Committee of the FSA]."

13. On 30 September 1999 the GMC wrote to the claimants' solicitors and to Dr Sengupta notifying them of the PPC's decision. Both letters were signed by a careworker, Ms Samantha Anthony, of the Fitness to Practise Directorate of the GMC. I shall have to return to the detailed terms of these letters later in this judgment.
14. Thereafter, the claimants, through their solicitors, requested copies of the Minutes of the PPC recording the GMC's decisions in relation both to Dr Rahman and Dr Sengupta. Initially, the GMC declined that request, but it later provided a copy of the Minute regarding the PPC's decision in relation to Dr Sengupta, as I have quoted it a moment ago. There was no PPC Minute relating to Dr Rahman because, as already explained, the complaint against him was not in the event referred to the PPC.
15. On 26 October 2000 the claimants issued the present judicial review proceedings challenging the GMC's decisions in relation to both Dr Rahman and Dr Sengupta. There were two pleaded grounds of challenge. In the first place, the claimants challenged the refusal of the GMC to give reasons for its decisions as being procedurally unfair and contrary to Article 6 of the European Convention on Human Rights ("the ECHR"). In the second place, the claimants contended that the decisions not to proceed with the complaints were unreasonable and perverse.
16. Dr Rahman and Dr Sengupta were joined in the proceedings as interested parties.
17. In due course, grounds of opposition were filed by the GMC and by Dr Rahman and Dr Sengupta. By its Grounds of Opposition, the GMC joined issue on the application of Article 6 of the ECHR and on the allegation of perverseness. It also relied on delay on the part of the claimants. The two doctors (through their solicitors Le Brasseur J Tickle -- now RadcliffesLeBrasseur) also opposed the relief sought, and sought to obtain further information as to the basis for the respective decisions.
18. On 5 December 2000 Rafferty J granted the claimants permission to apply for judicial review. Following the grant of permission, the GMC reappraised its position and decided to consent to the quashing of the two decisions on the ground that in reaching those decisions the wrong legal test had been applied. This was not a ground on which the claimants had relied in challenging the decisions.
19. A form of Consent Order quashing the two decisions was subsequently agreed between the claimants and the Council, but the interested parties maintained their opposition to the decisions being quashed. Accordingly, when the substantive hearing took place before Ouseley J the claimants and the GMC were united in seeking the quashing of the two decisions, whereas the interested parties opposed the application.
20. In addition to joining issue on the question of the test which had been applied in reaching the two decisions, the interested parties also relied on delay on the part of the claimants in bringing the proceedings (the GMC having abandoned reliance on delay).
21. As indicated earlier, Ouseley J granted the relief sought by quashing both decisions. He refused permission to appeal. Dr Sengupta applied to the Court of Appeal for permission to appeal. Laws LJ refused permission on the papers on 30 May 2001, but on 20 July 2001 permission was granted at an oral hearing by Simon Brown and Tuckey LJJ.
22. I turn at this point to the relevant legal framework.
23. I start with the Medical Health Act 1983, as amended ("the 1983 Act"). Section 1(1) provides that there shall continue to be a body corporate known as the General Medical Council, having the functions assigned to it by the Act. Section 1(3) provides that there shall continue to be four committees of the GMC, viz the Education Committee, the PPC, the PCC and the Health Committee, having the functions assigned to them by the Act. Section 2 provides that there shall continue to be a register of medical practitioners, kept by the registrar of the GMC. Section 36(1) provides as follows (so far as material). The section is headed "Professional misconduct and criminal offences". Subsection (1) provides:

"(1) Where a fully registered person-

(a) ...

(b) is judged by the Professional Conduct Committee to have been guilty of serious professional misconduct, whether while so registered or not;

The Committee may, if they think fit, direct-

(i) that his name shall be erased from the register;

(ii) that his registration in the register shall be suspended (that is to say, shall not have effect) during such period not exceeding twelve months as may be specified in the direction; or

(iii) that his registration shall be conditional on his compliance, during such period not exceeding three years as may be specified in the direction, with such requirements so specified as the committee think fit to impose for the protection of members of the public or in his interests."

Section 37 of the 1983 Act deals with unfitness to practise through illness: no question of illness arises in the instant case.

24. Lastly, so far as the 1983 Act is concerned, I refer to section 42, which is headed "Preliminary proceedings as to professional misconduct and unfitness to practise". Subsection (1) reads as follows:

"(1) The Preliminary Proceedings Committee shall have the functions assigned to them by this section.

(2) It shall be the duty of the Committee to decide whether any case referred to them for consideration in which a practitioner is alleged to be liable to have his name erased under section 36 above or his registration suspended or made subject to conditions under section 36 or 37 above ought to be referred for inquiry by the Professional Conduct Committee or the Health Committee."

Subsection (5) provides that if the PPC decide that a case ought to be referred for inquiry to the PCC, the Registrar shall serve a notice of the decision on the person whose case has been so referred.

25. I turn next to the rules governing the GMC's investigative procedures in relation to complaints of misconduct against medical practitioners. They are the General Medical Council Preliminary Proceedings Committee and Professional Conduct Committee (Procedure) Rules Order of Council 1988 (SI 2255/1988) (as amended) ("the 1988 Rules").
26. The 1988 Rules provide for, in effect, four different stages for dealing with a complaint of misconduct made against a medical practitioner.
27. The first stage involves what is essentially an administrative or ministerial process, to be carried out by the Registrar. I need not refer further to this initial stage.
28. The second stage is what has been referred to as the 'screening' stage. This stage is dealt with in Part II of the 1988 Rules, which comprises rules 2 to 10 inclusive, and which is headed "Initial Consideration of Cases". Rule 4(1) provides (so far as material) that no case shall be considered by the PPC unless it has first been considered by a medical member of the Council appointed under the rule and referred by that member to the PPC. Rule 4(5) requires "the President" (a defined expression which includes any member appointed under rule (4)) to nominate, and the GMC to appoint, a lay member of the GMC to assist in "the initial consideration of complaints". Rule 6(3) provides (so far as material) that, subject to rule 6(4), unless it appears to the President that the matter "need not proceed further" he shall direct the Registrar to write to the practitioner notifying him of the complaint and stating "the matters which appear to raise a question whether the practitioner has committed serious professional misconduct". Rule 6(4) provides that where it appears to the President that a complaint "need not proceed further", he shall direct that the complainant be so informed, "provided that no such direction shall be made except with the concurrence of the lay member ...". To the same effect, rule 10(2) provides that the President shall not decide not to refer a complaint to the PPC except with the concurrence of the lay member.
29. Part III of the 1988 Rules (which comprises rules 11 to 16 inclusive) deals with the procedure of the PPC. This is the third stage in the investigative process. Rule 11(1) provides that the PPC shall consider any case which has been referred to it under the rules, and shall decide whether or not to refer it either to the Professional Conduct Committee or, as the case may be, to the Health Committee (in the case of a complaint based on an alleged mental or physical unfitness to practise). Rule 11(2) provides that when referring a complaint to the PCC, the PPC shall indicate (among other things) "the matters which in their opinion appear to raise a question whether the practitioner has committed serious professional misconduct". Rule 11(5) provides that if the PPC decides not to refer a complaint to the PCC or (as the case may be) to the Health Committee, "the Registrar shall inform the practitioner and the complainant (if any) of the decision in such terms as the Committee may direct". Rule 15 provides that the PPC shall meet in private. Rule 16 (this being the rule which was challenged by the claimants as being contrary to Article 6 of the ECHR) provides that where the PPC has decided not to refer a complaint, neither the complainant nor the practitioner shall have any right of access to any documents relating to the complaint nor shall the PPC be required by a complainant or practitioner to state reasons for their decision.
30. At this stage I must refer also to the General Medical Council (Legal Assessors) Rules 1980. Rule 1 of these rules provides, in sub-paragraph (2), a definition of the expression "the Committee" as including the PPC. Rules 2 and 3 provide as follows:

"2. It shall be the duty of the legal assessor to be present at all proceedings before the Committee and to advise on any questions of law arising which may be referred to him by the Committee.

3. It shall be the duty of the legal assessor to inform the Committee forthwith of any irregularity in the conduct of proceedings before that Committee which may come to his knowledge and advise them of his own motion where it appears to him that, but for such advice, there is a possibility of a mistake of law being made."

The fourth stage in the investigative process is the hearing by the PCC of cases which have been referred to it by the PPC. This stage is dealt with in Part V of the 1988 Rules. Since the complaint against Dr Sengupta never reached this stage, it is unnecessary to make reference to Part V of the 1988 Rules.

31. I must now turn to the two letters at the centre of this case, that is to say the letters from the GMC to the claimants' solicitors and to Dr Sengupta, both dated 30 September 1999, informing them of the PPC's decision.
32. The letter to the claimants' solicitors, which was marked for the attention of a Mr Thomas, reads as follows:

"I am writing in connection with [the] matter referred to us by the Welsh Office concerning the treatment of Derrick Marcus Dean by Dr S Sengupta. The case was referred to the Preliminary Proceeding Committee on 9 September 1999 for consideration. I apologise for the delay in conveying their decision to you.

After careful consideration the Committee has decided that it will not be necessary to refer this matter to the Professional Conduct Committee for further consideration of Dr Sengupta's fitness to practise.

The Committee concurred with the view of the original Medical Service Committee which found that Dr Sengupta had not placed himself in an adequate position to make a clinical judgement and that the record keeping of the consultation with Mr Dean was poor.

They felt that Dr Sengupta did not give due regard to Mr Dean's prior medical history and that his actions were inadequate in the circumstances.

However, the Committee took into account that this was a single case and that Mr Dean had recently been seen in hospital. They noted that Dr Sengupta had offered to review Mr Dean's condition in 12 hours and the condition which Mr Dean had was, of itself difficult to diagnose.

The Committee felt having regard to all these circumstances that this matter did not reach the threshold of serious professional misconduct.

The Committee appreciates that this will be a disappointing outcome for the members of Mr Dean's family. They have asked me to stress that the outcome in this case was tragic and that they appreciate the family's distress at these events.

They have asked me to explain that they have a duty to examine the doctor's individual actions and that an error or omission (even where this has had serious consequences) may not justify the revocation of a doctor's license to practise permanently.

Dr Sengupta has been reminded if his professional obligations and has sent a copy of 'Good Medical Practise.' He has been warned that this matter may be reconsidered should we receive any further information about his practice in the next three years.

I ask that you convey our decision and the reasons for it to your client and convey our sympathies.

The letter to Dr Sengupta was in the following terms:

"The Preliminary Proceedings Committee, which met on 9 September 1999, has considered the allegations regarding your conduct described in our letter dated 30 June 1999. The Committee also had before them your observations, as set out in the letter from your representatives dated 5 August 1999.

After careful consideration, the Committee decided that it would not be necessary to refer your case for a public inquiry by the Professional Conduct Committee. They took into account that this was a single case and that the patient had recently been seen in hospital and that you offered Mr Dean a review in 12 hours and that the condition itself is difficult to diagnose.

They were of the view that you did not place yourself in a proper position to make a clinical judgement and did not give due regard to Mr Dean's previous history. The members fully endorse the view of the Medical Service Committee, that your examination and assessment of Mr Dean's was inadequate in the circumstances.

In addition, the Committee was concerned about the quality of the records relating to your consultation with Mr Dean.

I have been asked to remind you of your responsibility to keep clear and precise notes concerning patient care, which accurately reflect the details of the symptoms, examination, clinical findings and treatment given.

The Committee has asked that I refer you to paragraph 2 of the enclosed booklet 'Good Medical Practise' and have asked that you adhere to this guidance in your future practise.

I have been asked to explain that the papers in this case may be retained for a period of up to three years and may be reconsidered in the light of any further information that is received concerning your practice."

33. Before Ouseley J was a witness statement by a Mr Matthew Lohn, a partner in Field Fisher Waterhouse, the GMC's solicitors, setting out, under the heading "the errors in the decision-making process", the GMC's reasons for agreeing that the decisions be quashed. In relation to the decision concerning Dr Sengupta, Mr Lohn says this (in paragraph 23 of his statement) with reference to the letter dated 30 September 1999 to the claimants' solicitors:

"Like the Rahman letter, this is PCC language. It echoes the test to be applied by the PCC and does not appear to be consistent with the test to be applied by the PPC. It indicates that the PPC reached conclusions or findings as to the errors that Dr Sengupta had made - ..."

Later in the paragraph he says this:

"It suggests that they then reached a conclusion that these errors did not reach the level of serious professional misconduct. They did not ask themselves whether there was a 'question' of whether that level was reached, or whether it was arguable that it might have been reached. They reached a definitive conclusion."

Mr Lohn then refers to, and quotes, the PPC Minute (which I quoted earlier in this judgment), as being the only contemporaneous document relating to the PPC's decision. Mr Lohn comments that the Minute makes no mention of the test which was applied. In paragraph 25 of his witness statement, Mr Lohn says:

"In addition, the Sengupta letter also contains a reference to the power to revoke a doctor's licence to practise 'permanently'. This is troubling since it does not appear that the PPC has considered the power to affect the right to practise temporarily or conditionally or the power to impose a lesser sanction (such as a reprimand)."

Mr Lohn concludes his statement by saying that the GMC is satisfied that it cannot properly support the challenged decisions. He emphasises that the GMC does not regard the instant case as raising any question about the correctness of two decisions of the Administrative Court to which the judge referred in his judgment (and to which further reference will be made hereafter), viz R v GMC, ex parte Toth [2000] 1 WLR 2209 and R (on the application of Richards) v GMC [2001] Lloyd's Law Reports (Medical) 47. The first ("Toth") is a decision of Lightman J; the second ("Richards") is a decision of Sullivan J. Mr Lohn concludes his witness statement by saying this:

"... The GMC simply does not regard [the decisions under challenge] as consistent with the statutory language - even if that language is construed, so far as reasonably possible, to give the screeners and the PPC a wider discretion to reject complaints than is contemplated in Toth and Richards."

34. I can now turn to the judgment of Ouseley J.
35. Having set out the factual and procedural background and having referred to the 1983 Act and to the 1988 Rules, the judge turned to the decisions of the Administrative Court in Toth and Richards.
36. In Toth, Lightman J analysed the different stages of the investigative process under the 1988 Rules. In paragraph 14 of his judgment he identified the general principles underlying the process as being:

"(a) the public have an interest in the maintenance of standards and the investigation of complaints of serious professional misconduct against practitioners; (b) public confidence in the GMC and the medical profession requires, and complainants have a legitimate expectation, that such complaints (in the absence of some special and sufficient reason) will be publicly investigated by the [PCC]; and (c) justice should in such cases be seen to be done. This must be most particularly the case where the practitioner continues to be registered and to practise."

Lightman J went on to describe the role and function of the PPC as follows:

"The PPC may examine whether the complaint has any real prospect of being established, and may themselves conduct an investigation into its prospects, and may refuse to refer if satisfied that the real prospect is not present, but they must do so with the utmost caution bearing in mind the one­sided nature of their procedures under the [1988 Rules], which provide that, whilst the practitioner is afforded access to the complaint and [is] able to respond to it, the complainant has no right of access to or to make an informed reply to that response, and the limited material likely to be available before the PPC compared to that available before the PCC. It is not their role to resolve conflicts of evidence. There may be circumstances which entitle them to hold that the complaint should not proceed for other reasons, but the PPC must bear in mind their limited (filtering) role and must balance regard for the interests of the practitioner against the interests of the complainant and the public and bear in mind the need for the reassurance of the complainant and the public that complaints are fully and properly investigated and that there is no cover­up. In the case of the PPC (as in case of the screener) any doubt should be resolved in favour of the investigation proceeding."

37. In paragraph 58 of his judgment in Richards, Sullivan J gave a general endorsement of Lightman J's analysis, subject only to certain limit qualifications. In particular, Sullivan J agreed with Lightman J that the PPC:

"... should certainly exercise caution for the reasons given by Lightman J in deciding not to refer a complaint to the [PCC] on the basis that it has no real prospect of being established, having itself conducted a preliminary investigation into its prospects on the documents alone."

38. Sullivan J went on (in paragraph 58) to qualify Lightman J's statement that it is not the role of the PPC to resolve conflicts of evidence by saying that the PPC "should not normally seek to resolve substantial conflicts of evidence", on the footing that to do so "would be to go beyond its screening role and to usurp the function of the [PCC]".
39. After quoting passages from the judgments of Lightman J in Toth and Sullivan J in Richards, Ouseley J summarised the arguments which had been addressed to him on behalf of the claimants, the GMC and the interested parties. In the next section of his judgment, headed "Conclusion", the judge began by making four general points, as follows:

"53. In my judgment, the question of whether the correct test was applied is an issue of fact to be resolved upon the available material, but I bear in mind that it is for the claimants, or the claimants and defendant in this case unusually, to establish that the asserted application of an erroneous test is the better view upon the available material. I also take into account the absence of an affidavit as to the test applied, although the interested parties sought such information, and that there are deficiencies in the evidenced chain of connection proved between the letters that were sent and the decision makers themselves.

54. However, in general terms, before I turn to deal with the specific cases, first, I infer that the author of the letters, that is to say the caseworker, would have been informed of the basis of the decision by the decision maker and would faithfully have reflected it in her letters. I am reluctant to apply an unduly nuanced reading to those letters. Mr Shaw has told us on instructions that the caseworker in fact would have had discussions with the decision makers. Even if he had not had said so, I would have inferred that that would have had to take place for the caseworker to be able to write a letter at all.

55. Secondly, if there had been clear evidence of a test being consistently applied with the relevant distinctions between the roles of the various bodies being routinely observed, I would have had it, even if the individual case itself could not be remembered. I attach weight, but not determinative weight, to the position of the GMC, knowing its decision makers and the language which is used by them, being unable to support the decisions in this case as positively showing that the correct approach had been adopted. I accept what Mr Shaw told me on instructions that each of the letters had novel paragraphs in them and that there was no standard form of words for the concluding paragraphs.

56. Thirdly, it is important not merely to read the individual letters as a whole, but to read the totality of the correspondence and documentary material relating to a particular case as a whole. I emphasise that because the task which the court has to embark upon is one of drawing an inference as to the basis upon which decision makers reached their decision, by examining the totality of the available material to see if it enables the burden, which lies upon the claimants and defendant, to be discharged.

57. Fourthly, I do not regard it as appropriate to treat one decision as tainted or, conversely, cleansed by another. I take that view because in one case it is perfectly possible for the screener or PPC, as the case may be, to reach a conclusion that no issue arose because the case was very clear, but in another case it could resolve an issue through taking a wrongful and premature view on the prospects of success of such a case."

40. The judge then turned to the decision concerning the complaint against Dr Rahman. Since there is no appeal against the quashing of that decision, I need not make further reference to this part of the judgment.
41. At paragraph 66 of his judgment, the judge turned to the case of Dr Sengupta. I must read in full the section of his judgment in which he expresses his conclusions in relation to Dr Sengupta:

"66. I turn to the case of Dr Sengupta. I am not persuaded that the first page of the letter of 30th September 1999 taken in isolation evidences an error of law. The last sentence is important:

'The Committee felt having regard to all these circumstances that this matter did not reach the threshold for serious professional misconduct.'

67. It would be unduly legalistic to treat that last paragraph by itself as doing other than make clear the conclusion of the Committee that the conduct fell outside the range of conduct capable of constituting serious professional misconduct. Again, there was no impermissible finding of fact because the Committee took the case against the interested party at its highest. There is nothing in the minutes which disturbs the conclusion that would be arrived at from an examination of that paragraph by itself, and, for reasons which I have already given, it is inappropriate to treat this letter as tainted by the error which has affected Dr Rahman.

68. I should just add that the draft letter to the Welsh Office, whilst referring also to Dr Sengupta, as indeed does some of the other material which I have referred to in the case of Dr Rahman, does not provide any assistance in the case of Dr Sengupta because the screening panel was not the decision making body in the case of Dr Sengupta.

69. However, there is a seriously troubling point in the penultimate paragraph of the letter of 30th September 1999. This paragraph states that:

'... an error or omission (even where this has had serious consequences) may not justify the revocation of a doctor's licence to practise permanently.'

70. Whilst I appreciate that that may be regarded as a general comment, I am satisfied, however, that it goes further than that and evidences the test by which what was capable of constituting serious professional misconduct was judged.

71. The quality of conduct capable of constituting serious professional misconduct has been judged by reference to that which is necessary to justify the permit revocation of the licence. Whilst I was unimpressed by Mr Shaw's argument that nothing is permanent and that even after erasure from the register a doctor can reapply, the word "permanently" in that paragraph is plainly directed to the consequence of erasure. However, I do consider that the language shows that the range of conduct capable of constituting serious professional misconduct was unduly narrowed because other and lesser penalties exist for serious professional misconduct which are relevant to the judgment of the quality of conduct as capable of constituting serious professional misconduct.

72. Again, as with Dr Rahman, the conduct of Dr Sengupta taken at its highest against him and as set out in the letter of 30th September 1999 plainly permits the conclusion that his conduct was not capable of being serious professional misconduct, and, again, the fact that a single act would only unusually amount to serious professional misconduct is of assistance to Miss O'Rourke. But, again, the circumstances are not so strong that they override the value of the documentary material in understanding the basis for the decision.

73. So with considerable hesitation in this case, but nonetheless recognising the significance of the General Medical Council's awareness of the practice and position of its decision makers, I have come to the conclusion on balance that this shows that there was an error of law in the approach adopted by the Committee."

42. The judge accordingly concluded that both decisions would fall to be quashed, subject only to the issue of delay.
43. The judge then considered the arguments about delay, concluding (in paragraph 100) that the delay which had occurred did not justify a refusal to quash decisions which had been arrived at unlawfully. He accordingly made the order quashing the decisions.
44. Since (as will appear) Dr Sengupta does not rely on delay as a ground of appeal, I need not consider further that part of the judge's judgment which addresses the issue of delay.
45. By his grounds of appeal, Dr Sengupta contends that there was no evidence before the judge on which he could reasonably have concluded that the PPC applied the wrong test; that the judge's reliance on the word "permanently" in the letter to the claimants' solicitors was misplaced, since there was no evidence that the letter had been seen or approved by members of the PPC or that it represented their understanding of the appropriate test; that the judge failed to consider the burden of proving that the wrong test was applied (a burden which was on the claimants); that he failed to give sufficient weight to the only available evidence of the PPC's deliberations, viz the Minute of the meeting on 9 September 1999. As his final ground of appeal Dr Sengupta also seeks to challenge the judge's order in relation to costs, but in the event permission to appeal was not sought in respect of that ground of appeal.
46. By a Respondent's Notice filed on 24 August 2001, the GMC contends, as an additional reason for upholding the judge's decision, that the statement in the letter that the PPC "felt that having regard to all the circumstances that this matter did not reach the threshold of serious professional misconduct" sets the threshold too high (a contention which the judge rejected in paragraph 67 of his judgment, quoted earlier). In paragraph 4 of the Respondent's Notice, it is pleaded (more generally) that reading the entirety of the letter in question, it is couched in terms of decision-making on the merits.
47. On the hearing of this appeal, Dr Sengupta applies for an order pursuant to rule 52.11(2) of the CPR that this court should receive evidence which was not before Ouseley J. The GMC has made a similar application, but only if Dr Sengupta's application is successful. The primary stance of the GMC is that the additional evidence on which Dr Sengupta seeks to rely should not be received on this appeal.
48. Dr Sengupta seeks to adduce in evidence witness statements by four of the seven members of the PPC which considered the complaint against Dr Sengupta, including its chairman, Dr Steel. The witness statements are directed to their understanding of the test which the PPC should apply when deciding whether or not to refer a complaint to the Professional Conduct Committee, with particular reference to what the judge described (in paragraph 69 of his judgment) as "a seriously troubling point", based on the use of the word "permanently" in the letter dated 30 September 1999 to the claimants' solicitors: viz that the PPC may have approached the complaint on the footing that it should be referred to the PCC only if there was a possibility that the PCC might direct "permanent" erasure of Dr Sengupta's name from the register of practitioners, and that it may have taken no account of the existence of lesser sanctions for serious professional misconduct. None of the four witnesses has any specific recollection of the meeting in question.
49. In the event that such evidence is admitted, the GMC in turn seeks to introduce in evidence a witness statement by a Mr Peter Swain, who was in September 1999 employed by the GMC as a Casework Manager in the Screening and Conduct Section of the Fitness to Practise Directorate of the GMC. Mr Swain's witness statement comments on the use of the word "permanently" in the letter in question, and is also directed to the extent to which any member of the PPC saw and approved the letter. It describes the administrative practice which was followed by the GMC in September 1999 in relation to letters to complainants and to practitioners against whom complaints had been made informing them of decisions by the PPC not to refer a complaint to the Professional Conduct Committee.
50. In support of Dr Sengupta's application to introduce the new evidence, Miss Mary O'Rourke submits that the evidence as to the understanding of the members of the PPC as to the test which is the PPC should apply in deciding whether or not to refer a complaint to the PCC is both credible and likely to have an important influence on the outcome of the appeal. She has referred us to paragraph 54 of the judgment (quoted earlier) in which the judge draws inferences from such evidence, or the absence of it, as was before him. She has further referred us to the terms in which the judge refused permission to appeal, where he again referred to the insufficiency of the evidence before him and the need to draw inferences as to what in fact occurred.
51. She has also referred us to paragraph 4 of the proposed witness statement of Mr Swain, suggesting that it was not entirely clear, until the matter was explored in front of the judge, to what extent the case was dependent upon the significance or otherwise which the judge would attach to the inclusion of the word "permanently" in the letter to the claimants' solicitors.
52. She has also referred us in the same vein to the explanatory memorandum which was supplied by the GMC on the occasion when the draft consent order was drawn up.
53. She submits that the new evidence, if admitted, will remove the need for any drawing of inferences, and will indeed effectively rebut the inference which the judge chose to draw. She asks, rhetorically, what is more likely: a silly mistake by the caseworker who signed the letter and apparently drafted it; or a fundamental misconception on the part of the members of the PPC as to their true functions?
54. She accordingly submits that it would be in accordance with the overriding objective of the CPR -- that of dealing with cases justly -- that the additional evidence should be received.
55. Mr Mark Shaw QC, for the GMC, in his written skeleton argument submits that, on well-established principles, the additional evidence should not be received. He submits firstly that the evidence could easily have been obtained before the trial, and placed before the trial judge. Secondly, he submits that the evidence ought not to be received since in the circumstances of the instant case it would not be appropriate for the court (and still less the Court of Appeal) to conduct a factual investigation into the understanding of individual members of the PPC as to its functions and, in particular, as to the test which should be applied in considering whether or not to refer a complaint to the PCC. In support of this submission he relies on a number of authorities which stress the caution with which the court should regard ex post facto evidence from a decision-maker as to the reasons for the decision. He submits that such evidence should only be received for purposes of clarification or to resolve an ambiguity on the face of the decision. By contrast, he submits, in the instant case the evidence sought to be relied on by Dr Sengupta purports to contradict what appears on the face of the letter dated 30 September 1999 to the claimants' solicitors. He further points out that none of the witnesses has any specific recollection of Dr Sengupta's case, and that for a reason so far unexplained witness statements have been obtained from only four of the seven members of the PPC. In the circumstances, Mr Shaw submits that the evidence is not such as might have an important influence on the outcome of the appeal.
56. Lastly, and by way of an alternative submission, Mr Shaw submits that if the evidence in question is received on this appeal, then the court ought also to receive the evidence of Mr Swain, so that it can have a full and accurate picture of the procedures which were in operation in September 1999 in relation to the sending of letters informing complainants and practitioners of a decision that a complaint should not be referred to the PPC.
57. Mr Murray Hunt, for the claimants, in his written skeleton argument effectively adopts Mr Shaw's submissions in relation to new evidence.
58. In the course of the hearing this morning we indicated that we proposed to refuse the application, giving our reasons later. For my part, I would express the reasons for rejecting the application in the following terms.
59. In the first place, I consider that in the circumstances of the instant case it would not be appropriate to conduct a factual investigation into the understanding of individual members of the PPC as to their function. In my judgment, evidence (inevitably ex post facto) of the state of mind, intention or understanding of a decision-maker as to the role which he was required to perform in reaching his decision or as to the legal test which he was to apply in so doing ought to be received only in the most exceptional circumstances. I would respectfully endorse the warnings of Hooper J in Edwards v Cornwall County Council [2001] All ER 395 at paragraphs 43-40, and of Richards J in R (on the application of Molloy) v Powys County Council [2001] EWHC Admin 332 at paragraph 21, as to the dangers of conducting such an investigation and as to the caution with which the court should approach such evidence (if received). In my judgment it is one thing to receive evidence of this kind in order to clear up an ambiguity appearing on the face of the decision, but quite another to receive it in order to vary or contradict what appears on the face of the decision. The latter is the position in the instant case, in my judgment. So far as the claimants are concerned, the reasons for the decision were as expressed in the letter dated 30 September 1990: for them, that letter was the decision, and they are in my judgment entitled to take it as they find it. The more so in the light of rule 11(5) of the 1988 Rules (which I quoted earlier), which provides that the Registrar shall inform a complainant of a decision not to refer a complaint to the Professional Conduct Committee "in such terms as the Committee may direct".
60. In the second place, in my judgment the evidence on which Dr Sengupta seeks to rely could, with the application of reasonable diligence, have been made available at the hearing before the judge. As this court has made clear on a number of occasions following the introduction of the CPR in 1999, the principles established in the well-known case of Ladd v Marshall [1954] 1 WLR 1489 are still very much alive and relevant to applications to admit new evidence on appeal (see, for example, Hertfordshire Investments Ltd v Bubb [2000] 1 WLR 2318). The first of those principles is that the evidence in question could not with reasonable diligence have been obtained for use at the trial. That requirement, in my judgment, is not met in the instant case.
61. I turn, then, to the substance of the appeal.
62. Miss O'Rourke makes the following submissions, which very much reflect the submissions she made in support of her application to introduce new evidence. First, she submits that the letter to the claimants' solicitors was not a decision letter but merely a letter conveying information. She submits that the letter to Dr Sengupta was the decision letter, and that that letter contains no indication of any error of law. Secondly, her application to introduce new evidence having been rejected, she submits that the only evidence of the decision itself (which was made some three weeks before the letters were sent) is the typed minute of the PPC's decision, which I quoted earlier, and that there is nothing in that minute to indicate that the members of the PPC, or any of them, believed that the quality of the conduct necessary to constitute serious professional misconduct had to be such as to justify a permanent revocation of the practitioner's licence to practice. She points out that the PPC sits with a legal assessor (in the instant case, an experienced legal assessor in the person of Mr Michael Gale QC), and deals with a very large number of cases every year. She has referred us to the provisions of the rules relating to the legal assessors, to which I referred earlier in this judgment. Hence, she submits, it can safely be assumed that the members of the PPC had expertise in discharging their functions. She submits that the judge decided the case on what was effectively a different basis from that which had been argued before him, in that whereas the argument had focussed on whether the correct test had been applied, the judge decided, in effect, that the PPC set the standard of "serious professional misconduct" too high. She points to the absence of any evidence from members of the PPC as to their understanding, or, for that matter, from the legal assessor. Equally, she points out, there is no evidence before the court that any member of the PPC had seen the letter to the claimants' solicitors, still less that they had approved its wording. Nor is there any evidence from the writer of the letter, Ms Anthony, as to whether she was present at the meeting on 9 September 1999 or as to whether the terms of the letter had been approved, and if so by whom. In any event, she submits, the offending sentence containing the word "permanently" is, as the judge himself commented, not part of the decision itself but is more in the nature of a general comment.
63. As to Mr Lohn's witness statement, Miss O'Rourke submits that it appears from that statement that the GMC's volte face was prompted more by their lawyers' reaction to the comments of Sullivan J in Richards (both Richards and Toth being decided after the decision letter was sent), than by any detailed investigation into the decision-making process in the instant case.
64. She submits, therefore, that there was no evidential basis for the inference drawn by the judge that the PPC had misdirected themselves in law, and that such an inference was completely unreasonable and unreal. She submits that the only reasonable inference, on the available evidence, is that an unexperienced caseworker made a silly mistake and that the Chairman -- if indeed he ever saw the letter -- failed to spot it, or to attach any particular significance to the word "permanently".
65. Finally, she submits that the judge fell into error in not dismissing the application on the basis that there was simply no credible or reliable evidence before him that the wrong test was applied or that the PPC otherwise misdirected themselves in law.
66. As foreshadowed by the Respondent's Notice, Mr Shaw, in his written skeleton argument, submits that the statement in the letter to the claimants' solicitors that "the PPC felt having regard to all these circumstances that this matter did not reach the threshold of serious misconduct" does not match the language of the statutory test, and that it sets too high a test. It is, he submits, not the language of preliminary consideration. Rather, on its face it appears to reflect the PPC's own definitive assessment of the facts and of the question whether, on those facts, Dr Sengupta was guilty of serious professional misconduct. Such language, he submits, would be appropriate for the PCC to use, in the discharge of its (very different) functions. He submits that support for this view is to be found elsewhere in the letter, and he advances the arguments foreshadowed by paragraph 4 of the Respondent's Notice (which I quoted earlier). He submits that the serious concerns to which (in his submission) the letter gives rise could only be dispelled by some other more or less contemporaneous document establishing unequivocally that the correct test was applied; yet, as is common ground, there is no such document. The Minute of the PPC's decision is silent on this aspect, and the letter to Dr Sengupta makes no mention of the test that was applied and is in some respects consistent with the wrong test having being applied. He accordingly submits that the judge was wrong to conclude (in paragraph 67 of his judgment) that the statement in the letter that the PPC felt that Dr Sengupta's conduct "did not reach the threshold for serious professional misconduct" was (as he puts it) "doing no more than make clear the conclusion of the Committee that the conduct fell outside the range of conduct capable of constituting serious professional misconduct"; and that this is a further ground for supporting the judge's decision.
67. Mr Shaw, in his skeleton argument, also relies on the "serious troubling point", as the judge described it, arising from the inclusion of the word "permanently" in the passage quoted earlier. Mr Shaw supports the judge's reasoning and decision on that point.
68. Mr Hunt, in his written skeleton argument, adopts Mr Shaw's submissions.
69. I can now state my own conclusions.
70. In the first place, as indicated earlier, as a general proposition it seems to me that decisions taken by bodies such as the PPC ought to stand or fall by the terms in which those decisions are promulgated. Of course further explanation may sometimes be required to clarify the meaning of a particular expression, or to resolve an ambiguity appearing on the face of the decision; but in general, those affected by such a decision ought, in my judgment, to be able to take it at face value. So I respectfully endorse (once again) the observations of Hooper J in Edwards and of Richards J in Molloy as to the need for great caution in considering whether to admit evidence from a tribunal commenting on its decision. In general, as Richards J said, decisions should speak for themselves.
71. In the instant case, I can see no reason why that general proposition should not apply. The claimants are, in my judgment, entitled to take this decision as they find it; and they find it in the letter dated 30 September 1999 from the GMC to their solicitors.
72. On that footing the question to be addressed is whether the terms of that letter reveal an error of law in the approach adopted by the PPC to the discharge of its functions in relation to the complaint against Dr Sengupta.
73. In my judgment the terms of that letter, read as a whole, are consistent only with the PPC having applied the wrong legal test in reaching its decision, in that (a) it regarded itself as having a fact-finding role, and (b) it treated the range of "serious professional misconduct" as being restricted to conduct which would attract "permanent" erasure from the register of practitioners, and in so doing left out of account conduct which would justify a lesser penalty.
74. As to (a), the statement that "this matter did not reach the threshold of serious misconduct" had, it stood alone, might, I think, have been capable of being construed in a sense which is consistent with the true role of the PPC as identified in Toth and Richards. But read in the context of the letter as a whole, it seems to me that it plainly arrogates to the PPC a fact-finding function which goes beyond that of merely deciding whether there is an arguable case of serious professional misconduct. In reaching this conclusion, I have in mind in particular the PPC's "concurrence" with the finding of the Medical Committee of the FSA that Dr Sengupta had not placed himself in an adequate position to make a clinical judgment, and the fact that the PPC "felt" that he did not have regard to Mr Dean's prior medical history and that his actions were inadequate. I would accordingly accept Mr Shaw's submission (adopted by Mr Hunt) that the judge was in error in paragraph 67 of his judgment in not so concluding.
75. As to (b), in my judgment the paragraph of the letter in which reference is made to "revocation of a doctor's license [sic] to practise permanently" is, on its face, consistent only with the PPC having misdirected itself as to its true role. And, for the reasons I have given, the PPC's decision stands or falls in my judgment by the words in which it is expressed.
76. For those reasons, I would dismiss this appeal.
77. LORD JUSTICE KEENE: I agree, and would add only a few comments of my own on the application to admit fresh evidence.
78. There are many reported judicial review cases which demonstrate that evidence should not normally be admitted as a way of seeking to show that the basis of the decision was different from that which appears on the face of a decision letter: see, for example, R v Tower Hamlets LBC, ex parte Chetnik Developments Ltd [1988] AC 858, per Lord Bridge at 878E-H. A party, as my Lord has said, is generally entitled to rely on the reasons set out in the decision letter itself. Here that objection is all the greater because the witness statements proffered do not deal with what actually happened at this particular committee meeting, for the simple reason that the committee members cannot remember the case itself. Their witness statements really amount to no more than an assertion that they would not have acted on the incorrect basis set out in the letter of 30 September 1999 because they were aware of the correct approach which should be adopted.
79. Unhappily, it is the experience of these courts that it is not uncommon for there to be cases where decisions-makers, even when themselves experienced and normally aware of the approach to be followed or the test to be applied, fall into error on a particular occasion. As Horace observed, "Even Homer sometimes nodded". These witness statements therefore would not have greatly assisted the court. Moreover, such evidence could with reasonable diligence have been put before Ouseley J. The letter of 21 December 2000 from the solicitors for the GMC to the appellant's solicitor raised the point that the letter of 30 September referred to the power to revoke a licence permanently, which it described as "curious". The issue may not have been highlighted by that letter, but it had certainly been raised some four months before the hearing before Ouseley J. For all these reasons it was not appropriate for this fresh evidence to be admitted before this court.
80. As for the substantive merits, I too would dismiss this appeal for the reasons given by my Lord.
81. LORD JUSTICE LAWS: I agree with the reasons given by my Lord, Lord Justice Jonathan Parker, and my Lord, Lord Justice Keene, which reasons as it seems to me are in harmony with each other, for this court's refusal to admit the fresh evidence sought to be adduced by the appellant.
82. I agree also that the appeal should be dismissed for the reasons given by my Lord, Lord Justice Jonathan Parker.

ORDER: Appeal dismissed; both the respondent and the claimants to have their costs of the appeal, to be subject to a detailed assessment in each case if not agreed.

(Order not part of approved judgment) ______________________________