England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
HIS HONOUR JUDGE GILBART QC

		Royal Courts of Justice Strand, London, WC2A 2LL
		18th May 2011

Lord Justice Jackson:

1. This judgment is in four parts, namely:

Part 2 The Facts,

Part 3 The Present Proceedings,

Part 4 The Appeal to the Court of Appeal.

This is an appeal by the General Medical Council against an order of the High Court quashing a direction made by the Fitness to Practise Panel of the General Medical Council. The respondent to this appeal is Dr Said Ahmed Zia.
2. In this judgment I shall refer to the appellant as "GMC". I shall refer to the respondent as "Dr Zia". I shall refer to the Medical Act 1983 as "the 1983 Act". I shall refer to the rules set out in the schedule to the General Medical Council (Fitness to Practice) Rules Order of Council 2004 as "the 2004 Rules" or "the Rules". I shall refer to the Fitness to Practise Panel as "the panel". I shall refer to the Interim Orders Panel of the GMC as "the IOP". The Investigation Committee of the GMC is referred to in the 1983 Act as "the Investigation Committee"; it is referred to in the 2004 Rules as "the Committee". To avoid confusion I shall refer to this body as "the investigation Committee".
3. I must next set out the relevant statutory provisions. Section 1 of the 1983 Act provides for the continuation of the existence of the General Medical Council. Section 1(1A) provides:

"The main objective of the General Council in exercising their functions is to protect, promote and maintain the health and safety of the public"

4. Section 1(3) of the 1983 Act provides that the GMC shall have a number of committees, including one or more IOPs, the Investigation Committee and one or more panels.
5. Section 35C of the 1983 Act provides:

"(1) This section applies where an allegation is made to the General Council against -

(a) a fully registered person; or

(b) a person who is provisionally registered,

that his fitness to practise is impaired.

(2) A person's fitness to practise shall be regarded as "impaired" for the purposes of this Act by reason only of -

(a) misconduct;

(b) deficient professional performance;

(c) a conviction or caution in the British Islands for a criminal offence, or a conviction elsewhere for an offence which, if committed in England and Wales, would constitute a criminal offence;

(d) adverse physical or mental health; or

(e) a determination by a body in the United Kingdom responsible under any enactment for the regulation of a health or social care profession to the effect that his fitness to practise as a member of that profession is impaired, or a determination by a regulatory body elsewhere to the same effect.

(3) This section is not prevented from applying because the allegation is based on a matter alleged to have occurred —

(a) outside the United Kingdom, or

(b) at a time when the person was not registered;

(4) The Investigation Committee shall investigate the allegation and decide whether it should be considered by a Fitness to Practise Panel.

(5) If the Investigation Committee decide that the allegation ought to be considered by a Fitness to Practise Panel -

(a) they shall give a direction to that effect to the Registrar;

(b) the Registrar shall refer the allegation to a Fitness to Practise Panel; and

(c) the Registrar shall serve a notification of the Committee's decision on the person who is the subject of the allegation and the person making the allegation (if any).

(6) If the Investigation Committee decide that the allegation ought not to be considered by a Fitness to Practise Panel, they may give a warning to the person who is the subject of the allegation regarding his future conduct or performance.

(7) If the Investigation Committee decide that the allegation ought not to be considered by a Fitness to Practise Panel, but that no warning should be given under subsection (6) above -

(a) they shall give a direction to that effect to the Registrar; and

(b) the Registrar shall serve a notification of the Committee's decision on the person who is the subject of the allegation and the person making the allegation (if any).

(8) If the Investigation Committee are of the opinion that an Interim Orders Panel or a Fitness to Practise Panel should consider making an order for interim suspension or interim conditional registration under section 41A below in relation to the person who is the subject of the allegation -

(a) they shall give a direction to that effect to the Registrar;

(b) the Registrar shall refer the matter to an Interim Orders Panel or a Fitness to Practise Panel for the Panel to decide whether to make such an order; and

(c) the Registrar shall serve notification of the decision on the person who is the subject of the allegation and the person making the allegation (if any)."

6. Section 35CC of the 1983 Act provides:

"(1) Rules under paragraph 1 of Schedule 4 to this Act may make provision for -

(a) the Registrar; or

(b) any other officer of the General Council,

to exercise the functions of the Investigation Committee under section 35C above, whether generally or in relation to such classes of case as may be specified in the rules.

(2) Where, by virtue of subsection (1) above, rules provide for the Registrar to exercise the functions of the Investigation Committee under subsections (5), (7) and (8) of section 35C above, those subsections shall apply in relation to him as if paragraph (a) in each of them were omitted."

7. Section 40 of the 1983 Act provides that appeals against the panel's decision lie to the High Court.
8. The 2004 Rules regulate the procedure for the investigation and resolution of allegations against medical practitioners. Rule 3 of the 2004 Rules provides:

"(1) The Registrar may appoint -

(a) a panel of medical and lay performance assessors for the purposes of carrying out performance assessments in accordance with Schedule 1; and

(b) a panel of medical examiners for the purposes of carrying out health assessments in accordance with Schedule 2.

(2) The Registrar may appoint --

(a) a panel of specialist health advisers for the purposes of advising a FTP Panel in relation to medical issues regarding a practitioner's health which may arise at a hearing before the FTP Panel; and

(b) a panel of specialist performance advisers for the purposes of advising a FTP Panel in relation to medical issues regarding a practitioner's performance which may arise at a hearing before the FTP Panel."

9. Rule 4 of the 2004 Rules provides:

"(1) An allegation shall initially be considered by the Registrar.

(2) Subject to paragraph (5) and rule 5, where the Registrar considers that the allegation falls within section 35C(2) of the Act, he shall refer the matter to a medical and a lay Case Examiner for consideration under rule 8.

(3) Where -

(a) the Registrar considers that an allegation does not fall within section 35C(2) of the Act; or

(b) in the case of an allegation falling within paragraph (5), the Registrar does not consider it to be in the public interest for the allegation to proceed, or

(c) the Registrar considers that an allegation should not proceed on grounds that it is vexatious,

he shall notify the practitioner and the maker of the allegation (if any) accordingly.

(4) The Registrar may, before deciding whether to refer an allegation, carry out any investigations as in his opinion are appropriate to the consideration of -

(a) whether or not the allegation falls within section 35C(2) of the Act;

(b) the practitioner's fitness to practise; or

(c) the matters outlined within paragraph (5) below.

(5) No allegation shall proceed further if, at the time it is first made or first comes to the attention of the General Council, more than five years have elapsed since the most recent events giving rise to the allegation, unless the Registrar considers that it is in the public interest, in the exceptional circumstances of the case, for it to proceed."

10. Rule 6 of the 2004 Rules provides:

"If, at any stage, the Registrar is of the opinion that an Interim Orders Panel should consider making an interim order in relation to a practitioner, he shall refer the allegation to an Interim Orders Panel accordingly."

11. Rule 7 of the 2004 Rules provides:

"(1) As soon as is reasonably practicable after referral of an allegation for consideration under rule 8, the Registrar shall write to the practitioner-

(a) informing him of the allegation and stating the matters which appear to raise a question as to whether his fitness to practise is impaired;

(b) providing him with copies of any documents received by the General Council in support of the allegation;

(c) inviting him to respond to the allegation with written representations within the period of 28 days from the date of the letter; and

(d) informing him that representations received from him will be disclosed, where appropriate, to the maker of the allegation (if any) for comment.

(2) The Registrar shall carry out any investigations, whether or not any have been carried out under rule 4(4), as in his opinion are appropriate to the consideration of the allegation under rule 8.

(3) The Registrar may direct that an assessment of the practitioner's performance or health be carried out in accordance with Schedule 1 or 2.

(4) Where an assessment has been carried out in accordance with Schedule 1 or 2, the Registrar shall send a copy of the assessment report to the practitioner.

(5) Where an assessment has been carried out in accordance with Schedule 1, the Registrar shall send a copy of the assessment report to any person by whom the practitioner is employed to provide medical services or with whom he has an arrangement to do so.

(6) Where the Registrar receives information that-

(a) the practitioner has failed to submit to, or comply with, an assessment under Schedule 1 or 2; or

(b) having submitted to an assessment under Schedule 1, the practitioner has failed to comply with reasonable requirements imposed by the Assessment Team;

the Registrar may --

(i) refer the allegation for determination by a FTP Panel, and

(ii) in a case falling within sub-paragraph (b), refer the practitioner to a FTP Panel for the purposes of making a direction under paragraph 5A(3) of Schedule 4 to the Act."

12. Rule 8 of the 2004 Rules provides:

"(1) An allegation referred by the Registrar under rule 4(2), 5(2), 12(6)(b) or 28(3)(c) shall be considered by the Case Examiners.

(2) Upon consideration of an allegation, the Case Examiners may unanimously decide-

(a) that the allegation should not proceed further;

(b) to issue a warning to the practitioner in accordance with rule 11(2);

(c) to refer the allegation to the Committee under rule 11(3) for determination under rule 11(6); or

(d) to refer the allegation for determination by a FTP Panel."

13. Rule 9 of the 2004 Rules provides for consideration of an allegation by the Investigation Committee. Upon consideration that committee can take a number of steps, one of which is to refer the allegation for determination by a panel.
14. Rule 13 of the 2004 Rules provides:

"For the purposes of sections 35A and 35B of the Act, the relevant date shall be the day on which the earliest of the following occurs-

(a) the decision of the Registrar to carry out investigations under rule 4(4)(a) and (b) or 7(2);

(b) the referral of an allegation to an Interim Orders Panel;

(c) the referral of an allegation for consideration by the Case Examiners under rule 8;

(d) the referral of an allegation to a FTP Panel; or

(e) the making of a direction that an assessment of the practitioner's performance or health be carried out in accordance with Schedule 1 or 2."

15. Schedule 1 to the 2004 Rules sets out the procedure to be followed for performance assessments. Such assessments are to be carried out by an assessment team. That team shall comprise a team leader who could be a medical performance assessor. It will also include at least one other medical performance assessor and at least one lay performance assessor.
16. Paragraph 3(3) of Schedule 1 to the 2004 Rules provides:

"The Assessment Team shall disclose to the practitioner any written information or opinion received by the Assessment Team which in their opinion may influence their assessment of the standard of his professional performance, and shall afford him a reasonable opportunity to respond."

17. Having set out the relevant statutory framework, I must now turn to the facts.
From the 4 March to 23 May 2008 Dr Zia was employed by the Cardiff and Vale NHS Trust ("the Trust") as a locum paediatric registrar. On 23 May 2008 the Trust decided to suspend Dr Zia. However, he resigned on the same day. By letter dated 17 June 2008 the Trust made an allegation to the GMC about the low standard of Dr Zia's clinical performance, specifically as regards three children, referred to as child A, child B and child C. The Trust also expressed concern that whilst employed by the Trust Dr Zia failed to recognize and act within the limits of his competence. The letter also expressed the Trust's extreme concerns about patient safety and expressed the view that a GMC review of Dr Zia's performance was required, enclosing supporting documents.
18. In accordance with his duty under rule 4(1) of the 2004 Rules the Registrar gave initial consideration to the Trust's assertions. Following that consideration the Registrar took two separate steps. On 10 July 2008 the Registrar referred the allegation against Dr Zia to the IOP pursuant to rule 6 of the 2004 Rules. On 11 July 2008 pursuant to rule 7(3) of the 2004 Rules the Registrar directed an assessment of Dr Zia's professional performance in accordance with schedule 1 to the Rules. The IOP investigated the matter and on 25 July 2008 made an interim suspension order for a period of 18 months.
19. By letter dated 21 September 2008 Dr Zia, having taken legal advice, refused to submit to an assessment of his performance in accordance with schedule 1 to the Rules. On 4 March 2009 the Registrar referred the allegation against Dr Zia to the panel pursuant to Rule 7(6)(a) and 7(6)(i) of the 2004 Rules. The basis upon which the Registrar made this direct referral to the panel was that Dr Zia had failed to submit to or comply with the proposed performance assessment.
20. On 28 September 2009 the Fitness to Practice Directorate of the GMC sent notice to Dr Zia that the following allegation was made against him, namely that his fitness to practice was impaired by a) misconduct and b) deficient professional practice. The particulars of misconduct and deficient professional practice were set out in thirteen numbered paragraphs in that letter which may be conveniently referred to as charges. Charges 1 to 8 related to Dr Zia's treatment of child A, child B and child C. Charges 9 to 15 related to Dr Zia's subsequent conduct. Notice was also given in that letter that the panel would consider the allegation against Dr Zia at a hearing in Manchester commencing on 9 November 2009.
21. The panel duly commenced its hearing of the 9 November 2009. It sat for a total of 18 days spread over the period November 2009 to February 2010. The panel heard evidence and arguments concerning the allegation and the individual charges within it. At the conclusion of the hearing the panel found a number of charges proved, including the majority of the charges concerning child A and the majority of the charges concerning child C. On the basis of its findings the panel directed a penalty of eight months suspension. That direction replaced the interim suspension order previously made by the IOP.
22. Dr Zia was aggrieved by the panel's direction. Accordingly he commenced the present proceedings.
By a notice of appeal issued on 30 March 2010 Dr Zia appealed to the High Court against the decision of the panel. Dr Zia had essentially four grounds of appeal. The first ground which Dr Zia called "abuse of process" was in effect that the panel had no jurisdiction to deal with his case because the Registrar of the GMC had failed to comply with the requirements of the 2004 Rules. The second ground of appeal was that the GMC could not properly prove its case because it called no independent expert evidence. The third ground of appeal was that the panel did not consider important parts of the medical records of the relevant patients. The fourth ground of appeal was that the findings made by the panel were wrong and open to challenge.
23. Dr Zia's appeal came on for hearing at the Administrative Court in Manchester on 9 November 2010, exactly one year after the commencement of the hearing before the panel. The judge, HHJ Gilbart, sitting as a deputy High Court judge, heard the matter that day and delivered his unreserved judgment. Dr Zia appeared in person before the Administrative Court. The GMC was represented by counsel.
24. The judge dealt with the first ground of appeal as a preliminary issue. After hearing argument he found in favour of Dr Zia on the preliminary issue and allowed the appeal on that ground. I would summarise the judge's reasoning and conclusions as follows:

1) The 2004 Rules constitute a code which contains important safeguards for a doctor against whom allegations are made.

2) One of the safeguards is that the doctor has the right to have his case considered at two stages before it proceeds to the Investigation Committee or the panel. The first stage is consideration by the Registrar. The second stage is consideration by two case examiners, one medical and one lay.

3) It is necessary to adopt a purposive construction of rule 7. In particular, the provisions of rule 7 cannot be used to bypass the second stage of consideration, namely consideration by case examiners.

4) The Registrar's powers under rule 7(3) can only be used to provide information to assist the case examiners in their consideration of the matter under Rule 8.

5) In this case contrary to rule 4(2) the Registrar failed to refer the allegation to case examiners. Furthermore, the Registrar used rules 7(3) and 7(6) in an impermissible manner, whereby he referred the Trust's allegations to the panel without any intervening examination by case examiners.

6) The contention that Dr Zia's only remedy was a judicial review challenge at an early stage was rejected.

25. Having reached those conclusions the judge made an order quashing the panel's direction that Dr Zia be suspended for eight months.
26. The GMC is aggrieved by the judge's decision on the preliminary issue. Accordingly it appeals to the Court of Appeal.
By a notice of appeal issued on 14 December 2010 the GMC appeals against the judge's decision on two grounds. First, it is said that the judge erred in his construction of the 2004 Rules. Secondly and alternatively, it is said that Dr Zia's only remedy was a judicial review challenge before the start of the hearing before the panel.
27. For reasons which will become apparent, it is not necessary for me to deal with the second ground of appeal. I shall therefore concentrate attention solely on the first ground. Indeed that is the only ground which has been the subject of argument today.
28. At the hearing today the GMC is represented by Ms Catherine Callaghan. Dr Zia appears in person as he did in the court below. I am grateful to both Ms Callaghan and Dr Zia for their assistance to this court.
29. The main issue around which argument has revolved is the correct interpretation of the Rules. The central issue, as it has emerged in argument, is whether the Registrar's power under rule 7(3) is limited. The judge held that that power can only be exercised after referral of the case to case examiners. Dr Zia supports that interpretation of the rule. Ms Callaghan for the GMC submits that the rule is not so constrained. It can be exercised before or after referral to case examiners. Ms Callaghan refers to rule 4(4). She submits that one form of investigation which the registrar is entitled to carry out under rule 4(4) is by directing a performance assessment pursuant to rule 7(3).
30. In support of the judge's interpretation Dr Zia relies upon rule 4(2) of the 2004 Rules. He submits that a doctor has a right to preliminary consideration of his case by case examiners. Dr Zia submits that the narrower interpretation of rule 7(3) should be preferred because that is necessary to preserve the doctor's right under rule 4(2).
31. This argument chimes with the judge's view that the purpose of these provisions is to provide procedural protections for the doctor. I do not agree with this purposive approach to the interpretation of the Rules. It needs to be borne in mind that the statutory objective set out in the Medical Act 1983 is the protection, promotion and maintenance of the health and safety of the public. In my view, the purpose of the Rules is to achieve a balance. First and foremost, the function of the Rules is to protect, promote and maintain the health and safety of the public. Also it is the function of the Rules to provide proper protection of the doctor against whom accusations are made, some of which may well turn out to be unfounded. It can be seen that on any view the majority of cases which are dealt with under the Rules will indeed receive consideration both from the registrar and subsequently from case examiners. However, as I read the Rules it is not invariably or inflexibly a case that whatever course may be taken matters will also be considered by case examiners before they proceed further.
32. Dr Zia submits that if the Registrar can direct a performance assessment at the outset the doctor is prejudiced. The doctor will not know what the charges are against him. In my view that argument is not well founded. It can be seen from paragraph 3(3) of schedule 1 to the Rules which I read out during Part 1 above that the assessment team are required to give proper notice to the doctor in question of the matters which are alleged against him and of any written information which they have received.
33. Dr Zia further submits that performance assessment is not appropriate until the various complaints have first been considered by case examiners. Only then will the assessors know what they should be focussing on. Again, I do not agree. Before the performance assessment begins both the performance assessors and the doctor will be aware of the matters which are alleged against the doctor. Indeed, this was what happened in the present case (see the correspondence sent to all concerned by the GMC in July 2008).
34. Dr Zia makes the further point that rule 7(3) must be read in context. He adopted the point put to him by Sir Anthony May, President of the Queen's Bench Division, that rules 7(1) and 7(2) both relate to functions of the Registrar which are only exercisable after the case has been referred to case examiners. Therefore one would expect rule 7(3) to be construed in the same way. One would expect rule 7(3) to relate to a Registrar's function which is only to be exercised after the matter has been referred to case examiners. This submission has some force. I must take it into account when considering the countervailing arguments advanced by Ms Callaghan, in order to weigh up the various arguments of construction in due course.
35. Ms Callaghan advances three arguments as to why rule 7(3) should be construed as applying both before and after referral to case examiners. First, Ms Callaghan submits that the phrase in rule 4(4) "any investigations" is a broad phrase; it must include the carrying out of a performance assessment in accordance with schedule 1 to the Rules. Secondly, Ms Callaghan draws attention to the fact that elsewhere in the 2004 Rules the phrase "any investigations" clearly does include the carrying out of a performance assessment (see rule 10(6), rule 11(7)(d) and rule 13A). Thirdly, Ms Callaghan points out that rule 13 (which I read out in Part 1 above) expressly envisages that the carrying out of a performance assessment may take place before an allegation is referred for consideration by case examiners.
36. I see considerable force in each of those three arguments of construction. Having weighed up the competing arguments on each side, on the one hand the points made by Dr Zia and on the other hand the points made by Ms Callaghan, I am quite satisfied that the GMC's interpretation of rule 7(3) and rule 4(4) is correct. It is simply not possible to read the Registrar's power to direct an assessment of a practitioner's performance under rule 7(3) as being in some way limited to the period after referral to case examiners.
37. In my view, the correct interpretation of the Rules is as follows. Rule 4(4) enables the registrar to carry out his own investigations before referring a case to case examiners under rule 4(2). Various investigations which the Registrar may carry out are provided for in the Rules. Rule 7(3) provides the Registrar with a power to direct performance assessment. The provisions of rule 7(3) are neither expressly nor impliedly limited to the period after a case has been referred to case examiners. One form of investigation which the Registrar is entitled to carry out under rule 4(4) is to obtain an assessment of the doctor's performance from performance assessors.
38. Accordingly, in the present case the Registrar was acting normally and in accordance with the Rules on 11 July 2008 when he directed an assessment of Dr Zia's professional performance. In the ordinary way, this course of action would not have deprived Dr Zia of the safeguard of consideration of his case by the Investigation Committee. If Dr Zia had submitted to the performance assessment and complied with the reasonable requirements of the performance assessors, the next stage would no doubt have been a referral of the matter to case examiners under rule 4(2) of the Rules. Unfortunately in the present case Dr Zia did not comply with the proposed performance assessment. In those circumstances the Registrar's additional powers under rule 7(6) were triggered. This fall back provision is necessary in order to prevent a doctor from thwarting the orderly investigation of an allegation against him. In my view the Registrar lawfully and correctly exercised his power under rule 7(6) to refer this case directly to the panel.
39. It can be seen from rule 13 of the 2004 Rules that circumstances are envisaged in which the referral of an allegation to the panel may precede the referral of an allegation for consideration by case examiners.
40. Dr Zia has developed an argument that the GMC's conduct in this case amounted to abuse of process. First, Dr Zia was deprived of preliminary consideration of his case by case examiners; secondly, he did not have proper notice of the allegation against him. I am not persuaded by these arguments. The fact that Dr Zia did not have the benefit of preliminary consideration by case examiners was the consequence of his own decision, namely a decision not to comply with the performance assessment. As to the second matter, it can be seen that Dr Zia was given full notice of the matters alleged against him. In July 2008 the GMC sent to Dr Zia copies of the material which the Trust had sent to the GMC. Furthermore, on 28 September 2008 the Fitness to Practice Directorate sent to Dr Zia details of the charges which would be dealt with by the panel in November.
41. Let me now draw the threads together. For the reasons set out above, I have come to the conclusion that the judge erred in his decision on the preliminary issue. The judge's order quashing the direction of the panel should be set aside. The sentence of eight months suspension should be reinstated. This case should be remitted to the Administrative Court in Manchester to deal with Dr Zia's other grounds of appeal on the basis that his first ground has failed.

Lord Justice Tomlinson:

42. I agree. The judge was in my view side-tracked by his belief that the process described in the Rules is designed to protect the proper interests of a person (that is to say a doctor) against whom an allegation has been made. I have no doubt that the process is intended and designed to be fair, and it is axiomatic that in conducting the process the various persons invested with powers under the Rules are required to act fairly. However, the judge, in my view, approached the matter from the wrong starting point. The starting point is, as my Lord, Jackson LJ has pointed out, that pursuant to Section (1(a) of the Medical Act 1983 the main objective of the General Council in exercising its is to protect, promote and maintain the health and safety of the public. Thus I do not, for my part, approach the construction of the Rules on the basis that the various stages described therein should be regarded as prescribed for the protection of the person against whom the allegation is made. I approach the task of construction of the Rules rather on the footing that the Rules are intended to provide a framework for the fair, economical, expeditious and efficient disposal of allegations made against medical practitioners. The Rules are, in my view, entirely clear. It is clear to my mind that the power under Rule 7(3) can be invoked before or after referral to case examiners. Not only does the Rule naturally so read, but also Rule 13 is drafted on the footing that either the making of a direction that an assessment of the practitioner's performance or health be carried out in accordance with Schedule 1 or 2 or the referral of an allegation to an FTP panel precede any referral to case examiners. If the practitioner fails to submit to or comply with an assessment under Schedule 1 or 2 then Rule 7(6), in my view, provides clearly that the registrar may proceed to refer the allegation to a fitness to practise panel. Not only again, as it seems to me, is the wording of the Rule clear, but also this is to my mind an entirely predictable and sensible framework to have been adopted. If the registrar has decided, as he has power to do under Rule 4(4), that he needs to carry out investigations before referring a case to case examiners, and if the medical practitioner frustrates those investigations, it follows that the case examiners, who have no power to conduct an oral hearing, might if there is a reference to them be unable to reach a conclusion or they might at the very least be seriously hampered in their consideration.
43. In such circumstances I do not find it surprising that the registrar is given the power to proceed to refer the matter to a fitness to practise panel.
44. I too would allow this appeal and I would also make the other orders proposed by Jackson LJ.

Sir Anthony May:

45. I agree that this appeal should be allowed for the reasons given by Jackson LJ. In my judgment the heart of the matter is this. The main question is whether investigations by the registrar under Rule 4(4) of the Schedule to the General Medical Council (Fitness to Practice) Rules Order of Council 2004, which in terms may precede a referral under Rule 4(2), embrace a direction under Rule 7(3) for a performance assessment under Schedule 1. The judge decided that it may not, and I consider that he was wrong. Part 2 of the Rules is headed "Investigation of Allegations". Rule 4 provides for an allegation as defined in Rule 2 that if the fitness to practise of a practitioner is impaired to be considered initially by the registrar. Rule 4(2) provides for the registrar to refer the allegation to a medical and lay case examiner where he considers that the allegation falls within Section 35C(2) of the Medical Act 1983, but the allegation may require further investigation, as, for instance, to enable the registrar to determine whether the allegation should not proceed on the grounds that it is vexatious (see Rule 4(3)C). Rule 4(4) provides that the registrar may, before deciding whether to refer the allegation to case examiners, carry out investigations which in his opinion are appropriate. It is evident from Rules 10(6), 11(7)D and 13A that such investigations may include the registrar directing under Rule 7(3) an assessment of the practitioner's performance in accordance with Schedule 1.
46. I am satisfied, in disagreement with the judge, that the power under Rule 7(3) may be exercised whether or not there has been a reference to case examiners under Rule 4(2), as is inferentially to be derived also from Rule 13. The contrary is not the correct construction of the Rules, only because Rule 7(1) and 7(2) operate after an allegation has been referred to case examiners with reference to Rule 8; Rule 7(3) does not so provide and, in my view, it is not to be inferred.
47. It follows that by Rule 7(6), where the registrar is informed that the practitioner has failed to submit to or comply with an assessment under Schedule 1, the registrar may refer the allegation for determination by a fitness to practice panel. This means that in these circumstances the Rules provide for the reference to case examiners to be bypassed, the allegation going straight to the panel. There is a logic in this, in that without a performance assessment the case examiners may not be able to undertake their task with adequate information. Dr Zia maintains that, unless the judge's interpretation of these rules is correct, a practitioner will have inadequate protection against inadequately defined and presented allegations. I do not think so. The registrar in practice sent all the material originally sent to the GMC to Dr Zia at the outset. Schedule 1 provides for disclosure by the assessment team to afford the practitioner a reasonable opportunity to respond. The hearing before the fitness to practice panel was properly preceded by a structured and detailed written statement of the allegations which the panel were to consider. To put it bluntly, a practitioner who does not cooperate with the performance assessment cannot complain if his case does not go to case examiners before consideration by the panel. He may have done this upon legal advice and thus not acted with professional impropriety as the panel found, but the effect was to impede a properly directed pre-referral investigation.
48. The appeal is accordingly allowed and Jackson LJ has indicated what in his view the order should be.

Order: Appeal allowed