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Cite as: [2015] EWCA Civ 769

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		Neutral Citation Number: [2015] EWCA Civ 769
		Case No: C1/2013/1887

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
HIS HONOUR JUDGE SYCAMORE SITTING AS A JUDGE OF THE HIGH COURT
CO/3183/2013

Royal Courts of Justice
Strand, London, WC2A 2LL

21st July 2015

B e f o r e :

LORD JUSTICE MOORE-BICK
LORD JUSTICE BEATSON
and
LORD JUSTICE VOS
____________________

Between:

	Dr Luise Ruth Schodlok	Appellant
	- and -
	The General Medical Council	Respondent

____________________

(Transcript of the Handed Down Judgment of
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____________________

Mr Lee Gledhill initially appeared pro bono for Dr Luise Schodlok, the appellant, who later appeared in person
Mr Ivan Hare (instructed by GMC Legal) for the Respondent
Hearing dates: 30th June and 1st July 2015
____________________

HTML VERSION OF JUDGMENT
____________________

Lord Justice Vos:

Introduction

This case began before us as both an appeal and an application for permission to appeal from the decision of 11^th June 2013 of His Honour Judge Sycamore, sitting as a deputy judge of the High Court. The judge had dismissed an appeal from the decision of 15^th February 2013 by the Fitness to Practise Panel (the "Panel") of the Medical Practitioners Tribunal Service under section 40(1)(a) of the Medical Act 1983 (the "Act"). The Panel had decided that the appellant, Dr Luise Ruth Schodlok, ("Dr Schodlok" or the "appellant"), had been guilty of four instances of serious misconduct and six instances of misconduct which did not amount to serious misconduct. The Panel determined that Dr Schodlok's fitness to practise was impaired within the meaning of section 35C(1) of the Act, and it directed sanctions in the form of a conditional registration under section 35D(2) of the Act.

The charges made by the General Medical Council ("GMC") against Dr Schodlok arose from the period during which she worked as an orthopaedic registrar at the Queen Elizabeth Hospital in Woolwich (the "hospital") in 2009 and 2010. Dr Schodlok qualified in Germany some 29 years ago, but has practised for many years in the United Kingdom.

Black LJ granted Dr Schodlok permission to appeal on a single ground namely whether the judge had been wrong to "restrict the scope of the appeal before him, in relation to the [Panel's] misconduct findings, to its findings of serious misconduct and not to permit [Dr Schodlok] to advance her arguments in relation to the findings of simple misconduct". Black LJ also, however, adjourned Dr Schodlok's application for permission to appeal on a range of further grounds to be heard by the court hearing the substantive appeal for which she had given permission.

The original hearing before the Panel occupied 40 days between 10^th July 2012 and 15^th February 2013. 28 witnesses were called in relation to 12 separate charges and numerous sub-charges. Many of the charges that the Panel found to have been proved related to a series of incidents involving a Mr Paul Marshall, an orthopaedic technician at the hospital, on either 25^th January 2010 or 12^th February 2010. It is useful first to define the charges against Dr Schodlok that the Panel found proven in two categories: those that they found amounted to serious misconduct and those that they found amounted to misconduct not amounting to serious misconduct.

The four findings of fact that were found to amount to serious misconduct

The four findings of fact that the Panel said amounted to serious misconduct which impaired the appellant's fitness to practise were as follows:-

i) On 25^th January 2010 the appellant attended patient B in the fracture clinic and shouted at Mr Marshall in the presence of patient B (charge 3(b)). I will call this "Serious Misconduct 1" or "SM 1".

ii) On 12^th February 2010, during a fracture clinic, the appellant was rude and verbally aggressive towards Mr Marshall when he reminded her that patient C was waiting to be seen (charge 4(b)). I will call this "Serious Misconduct 2" or "SM 2".

iii) On 12^th February 2010, during the fracture clinic, when the appellant did attend upon patient C, she was again rude and verbally aggressive towards Mr Marshall (charge 4(c)). I will call this "Serious Misconduct 3" or "SM 3".

iv) On 12^th February 2010, during a fracture clinic and during the treatment of patient D, the appellant refused Mr Marshall's request for further investigations into patient D's calf pain (charge 4(e)(ii)). I will call this "Serious Misconduct 4" or "SM 4".

The six findings of fact that were found to have amounted to misconduct, but not serious misconduct

The six findings of fact that the Panel said amounted to misconduct, but not serious misconduct, were as follows:-

i) On 25^th January 2010, the appellant failed to prescribe or arrange adequate analgesia for patient A for the manipulation of a fracture (charge 2(a)). I will call this "Non-Serious Misconduct 1" or "NSM 1".

ii) On 25^th January 2010, the appellant said to Mr Marshall that "you have messed up, you have done things wrong and now this patient will need surgery" or words to that effect (charge 3(c)(ii)). I will call this "Non-Serious Misconduct 2" or "NSM 2".

iii) On 12^th February 2010, the appellant wrongly accused Mr Marshall of throwing a brace at her in the clinic area (charge 4(d)(i)). I will call this "Non-Serious Misconduct 3" or "NSM 3".

iv) On 12^th February 2010, the appellant did not act on the potential symptoms of deep vein thrombosis in relation to patient D (charge 4(e)(i)). I will call this "Non-Serious Misconduct 4" or "NSM 4".

v) On 6^th September 2010, the appellant was verbally aggressive towards the orthopaedic consultant surgeon, Mr Tindall (charge 13(d)(ii)). I will call this "Non-Serious Misconduct 5" or "NSM 5".

vi) On 18^th June 2010, the appellant was rude and verbally aggressive to a sister in the day care unit, Sister Pamela Bent (charge 10). I will call this "Non-Serious Misconduct 6" or "NSM 6".

The Panel's decision

The Panel's decision is not, of course, in the form of a court judgment. The Panel comprised one medical practitioner and two lay people, advised by a Legal Assessor. In the circumstances, since some of the precise wording is important, I shall set out the material parts in full as follows:-

"Paragraph 3(b):

"b. you shouted at Mr Marshall in the presence of Patient B,"

has been found proved.

The Panel has noted that Mr Marshall described you as being "rude", "blunt" and "agitated". He also stated that you "raised [your] voice", and he described the tone and content of the conversation he had with you as "intimidating". Having considered this evidence, the Panel has inferred from the description of the scene that it was more than likely that you did shout at Mr Marshall even though he did not use the word shout.

…

Paragraph 4(a):

"4. On 12 February 2010 during a Fracture Clinic

a. you did not attend in good time for a consultation with Patient C when asked to do so by Mr Marshall;"

has been found proved.

The Panel has noted that Mr Marshall stated that he reminded you about a patient waiting to be seen by you in the plaster room whilst you were dealing with another patient in the Fracture Clinic. He also explained that following this, rather than attend the patient you went to see a manager to complain about his actions. The Panel was of the view that it is acceptable, in a busy clinic environment, for a patient to be kept waiting while a doctor is dealing with another patient, but it did not consider that it was acceptable to cause further delay in seeing the patient while seeking to complain to a manager about another member of staff.

…

Paragraphs 4(b) and 4(c) in their entirety:

"b. You were

i. rude,

ii. verbally aggressive towards Mr Marshall when he reminded you that Patient C was waiting to be seen,

c. When you did attend upon Patient C you were again

i. rude,

ii. verbally aggressive towards Mr Marshall,"

have been found proved.

The Panel has noted that Mr Marshall described you as "rude", and, amongst other things, "blunt", "patronising" and having an "aggressive" tone. Having considered this evidence, the Panel has inferred from the description of the scene that it was more than likely that you were rude and verbally aggressive towards Mr Marshall.

…

Paragraph 4(e)(i):

"e. During your treatment of Patient D you

i. did not act upon the potential symptoms of deep vein thrombosis,"

has been found proved.

The Panel has noted that the patient told you that her plaster was tight, that it was cutting into her, and that she had pain in her leg. She also told you that she had previously contacted her General Practitioner (GP) about her concerns. A number of the professional witnesses told the Panel that swelling and pain are potential symptoms of a deep vein thrombosis (DVT). The Panel has borne in mind that your notes in the patient's medical records refer to you advising the patient in relation to toe mobilisation and non-weight bearing. You made reference to prophylactic treatment and referred the patient back to her GP. The Panel accepted the evidence of the expert witness, that if you had considered the possibility of DVT and that prophylactic treatment was required to prevent propagation of the thrombus this should have been instigated in the hospital.

Having considered all the evidence the Panel concluded that during your treatment of the patient you did not act on the potential symptoms of DVT.

Paragraph 4(e)(ii):

"ii. refused Mr Marshall's request for further investigations into Patient D's calf pain;"

has been found proved.

The Panel has noted that Mr Marshall stated he went to speak to you about this patient and that you said you were not going to investigate further.

…

… the Legal Assessor … reminded the Panel that it first has to decide whether the facts amount to misconduct, and whether any misconduct is serious.

The Legal Assessor drew the Panel's attention to a definition of misconduct in the case of Roylance v GMC [2000] 1 AC 311, PC where Lord Clyde stated:

"Misconduct is a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a medical practitioner in the particular circumstances."

If the Panel decides that the facts do not amount to serious misconduct that would automatically mean that the doctor's fitness to practise is not impaired. However, if the Panel decide that the facts do amount to serious misconduct it has to decide whether that misconduct has the consequence that the doctor's fitness to practise is impaired. He advised that case law makes it clear that a finding of misconduct should not inevitably lead to a finding of impairment of fitness to practise.

…

In reaching its decisions, the Panel has also borne in mind the standards expected of a medical practitioner contained within the GMC's publication Good Medical Practice (May 2006 edition). In particular, the Panel has had regard to the following paragraphs of Good Medical Practice:

"41. Most doctors work in teams with colleagues from other professions. Working in teams does not change your personal accountability for your professional conduct and the care you provide. When working in a team, you should act as a positive role model and try to motivate and inspire your colleagues. You must:

(a) respect the skills and contributions of your colleagues,

(b) communicate effectively with colleagues within and outside the team…;

46. You must treat your colleagues fairly and with respect. You must not bully or harass them, or unfairly discriminate against them by allowing your personal views to affect adversely your professional relationship with them…"

…

The Panel next determined that the following facts amount to misconduct, but taking into account the context, find that this misconduct was not serious:

[see paragraph 6 above]

The Panel then determined that the following facts amount to misconduct which is serious:

[see paragraph 5 above]

Doctors occupy a position of privilege and trust in society and are expected to uphold proper standards of conduct. The Panel is of the view that your actions and behaviour towards professional colleagues repeatedly fell seriously short of those expectations. The public and patients have a right to expect that a doctor will not behave in a rude and/or verbally aggressive manner.

Individually, your actions amount to serious breaches of the GMC's guidance in relation to professional standards. Together, these breaches demonstrate conduct that falls far below the standards expected of any registered medical practitioner.

In all the circumstances, the Panel has determined that the facts found proved amount to serious misconduct.

The Panel went on to consider whether your fitness to practise is impaired. In coming to its decision on impairment, the Panel has considered, amongst other things, the issues of remediation, insight and likelihood of repetition.

The Panel's concerns, in the main, relate to your behaviour towards professional colleagues, particularly towards subordinate staff members. You have demonstrated a pattern of behaviour, especially when challenged, whereby you responded inappropriately, and in a manner not befitting a doctor.

The Panel has noted your belated statements to it regarding "the incidents at the Trust [being] regrettable". It has also noted that you have stated that you now always think very carefully before you react to provocation and insubordination, that you have never before or since found yourself in a similar situation to the one at the Trust, and that it would never happen again. The Panel concludes that you have demonstrated little insight into your behaviour. The Panel has fully borne in mind the descriptions it has heard of the sometimes difficult circumstances in which you were working at the time. It has also noted that the behaviour of a number of your professional colleagues was far from [blameless].

The Panel has noted that you are of previous good character. It has borne in mind that … there have been no other questions raised about your behaviour towards professional colleagues, in over twenty years of your working in the United Kingdom. … The Panel has noted the positive testimonials presented on your behalf.

Having considered all the evidence, the Panel was of the view that your behaviour could be remedied. However, no evidence has been placed before this Panel regarding any efforts you have made towards this. The Panel considers that your lack of effort to address your highlighted failings demonstrates that you have little insight into your behaviour.

In the light of this, and your having little insight, the Panel is not satisfied that your misconduct would not be repeated again in the future.

Whilst the Panel considers that the background and circumstances in which the facts of your case occurred go some way towards explaining your behaviour it cannot excuse it.

In summary, the Panel has concluded that your misconduct had the potential to put patients at risk of harm, has brought the profession into disrepute, and that you have breached a fundamental tenet of the profession. The Panel notes paragraphs 41 and 46 of Good Medical Practice in this regard. The Panel is of the view that a finding of impaired fitness to practise is justified on the grounds that it is necessary to maintain public confidence in the profession, and to declare and uphold proper standards of conduct and behaviour.

In all the circumstances, the Panel has determined that your fitness to practise is impaired by reason of your misconduct".

The Panel imposed 9 conditions on Dr Schodlok's registration for a period of 12 months which were in fairly standard form save for the following 3 specific conditions:-

"6. You must actively engage with local mentoring support in any Trust you are working at during the period of these conditions and forward evidence that you have done so to the GMC.

7. You must undertake a course in anger management, of at least 20 hours duration, within six months of the date from which these conditions become effective and forward confirmation of attendance to the GMC. This course should be face to face and not online.

8. You must undertake a course in consultation skills, of at least one day duration, within six months of the date from which these conditions become effective and forward confirmation of attendance to the GMC. This course should be face to face and not online".

Judge Sycamore's decision

The judge set out the background and the charges, and then observed that "it was only in relation to four findings of fact, all relating to Mr Marshall, that the Panel [had] determined that they amounted to serious misconduct which impaired the appellant's fitness to practise and upon which the sanction was based". The judge then noted that the appellant had sought to appeal other findings of fact which did not amount to serious misconduct, and recorded that he had made it clear "at an early stage of the hearing before [him] that only those four findings of fact could properly be the subject of the appeal which is limited by the provisions of section 40 of the Act".

The judge held that the Panel had correctly approached its decision-making task in three stages. It had made its determination on the facts, then on impairment and then on sanction. In relation to impairment, the judge held that the Panel had correctly followed the two step approach identified by Cranston J in Cheatle v. General Medical Council [2009] EWCA 645 (Admin), namely first to decide whether the actions proved amounted to serious misconduct before deciding whether the appellant's fitness to practise was impaired by reason of misconduct.

The judge then held that "[t]hose findings of fact which the Panel found did not amount to misconduct or serious misconduct were not further relied upon by the Panel and are not relevant to this appeal". Having dealt with a number of the relevant authorities on the proper approach to an appeal from the Panel, the judge addressed the substantive procedural issues pursued by the appellant. He rejected her contentions that Mr Marshall should not have been permitted to give evidence by video link, that Mr Marshall should not have been permitted to refer to the letter of complaint he allegedly wrote on 15^th February 2010 five days after the second series of incidents, and that the appellant should not have had her time limited for the cross-examination of Mr Marshall.

The judge then turned to the Panel's challenged findings of fact and, after setting out the background to the Panel's decision-making process, he set out the Panel's findings of fact. His reasoning is then contained in paragraph 72 as follows:

"In my judgment, in respect of all of the charges, the Panel which had heard all of the evidence, some of it over a video link, was well placed to assess the evidence and form a view on issues of credibility. There is nothing in that which I have read or heard in submissions which justifies interfering with the Panel's assessment and findings, all of which were open to it on the basis of the evidence before it. It was for the Panel, as finders of fact, to make up their minds about credibility of witnesses and what they regarded as relevant in determining where the truth lay. There is nothing to suggest any material error on the part of the Panel which would warrant interference by the Court with those findings. It is the case that whilst the Panel did not make any express findings as to the respective credibility or reliability of the appellant or Mr Marshall, their determination makes it clear that they generally preferred the evidence of Mr Marshall to that of the appellant. There was, in my judgment, no obligation on the Panel to make those specific findings of credibility and their conclusions were ones which they were entitled to reach on the evidence before them. This ground of appeal fails".

The judge then held that, having upheld all the Panel's findings of fact, there was "no separate basis for interfering with the Panel's determination on misconduct and impairment", the Panel having taken proper account of both the circumstances of the hospital at the time and the positive testimonial evidence adduced by the appellant. He held that the Panel was entitled to find that the four matters found proved both individually and collectively amounted to serious misconduct.

Finally, the judge expressed the view that the sanction determined by the Panel was "lenient in all the circumstances".

Permission to appeal

I should deal now with the somewhat complex circumstances surrounding the grant of permission to appeal from Judge Sycamore. Dr Schodlok's application was first rejected on paper by Sir Stanley Burnton on 19^th February 2014 on the primary ground that it was a second appeal but it did not raise an important point of principle or practice. The matter then came twice before Black LJ. On the first occasion, she directed written submissions from the GMC, which were provided on 8^th August 2014 by Ms Eleanor Grey QC. On the second occasion on 23^rd October 2014, Black LJ granted permission to appeal in respect of the single issue I have already mentioned, but adjourned the remainder of the application for permission to appeal to be heard alongside the substantive appeal. Whilst one would not normally have regard to the reasons of the judge granting permission to appeal, it is worth noting that Black LJ concluded in relation to the findings of serious misconduct that there "may be more mileage in the proposed appeal than I originally thought". She did not actually grant permission on these points because she thought it would be possible for the full court to "get a better picture".

At the beginning of the hearing before us, we informed the parties that unusually we thought we ought to deal with the appellant's application for further permission to appeal before we heard the substantive appeal. This was because we were concerned about the time needed to hear (particularly) the substantive arguments as to the non-serious misconduct allegations. After argument, we decided (Moore-Bick LJ giving the lead judgment) that permission should be granted in respect of two further grounds: first, as to the four findings of serious misconduct and secondly, as to the conclusion that Dr Schodlok's fitness to practise was impaired and as to sanction. We refused permission to appeal in relation to the factual findings of non-serious misconduct, and the procedural grounds were not pursued. Moore-Bick LJ explained in his judgment that no important point of principle or practice was raised by the appeal from the non-serious misconduct findings, because (i) Dr Schodlok could succeed without challenging them, since it was the GMC's position that the Panel had not taken them into account in finding impairment, and (ii) if the Panel had, as Dr Schodlok submitted, wrongly taken them into account, the case would inevitably be remitted and Dr Schodlok would have a further section 40 appeal in relation to any findings later relied upon for a decision as to impairment. There was, therefore, no compelling reason to allow a further appeal on the non-serious misconduct questions. We might also have added that, if no impairment were later found, an application to judicially review the outstanding findings of non-serious misconduct would still theoretically be available to Dr Schodlok.

The issues

It seems to me that, in the circumstances I have described, the following issues arise for determination:-

i) Did the Panel take into account the proven incidents of non-serious misconduct in determining whether Dr Schodlok's fitness to practise was impaired?

ii) Was the Panel right to find each of the four instances of serious misconduct proved?

iii) Was the Panel right to find that Dr Schodlok's fitness to practise was impaired as a result of the instances of serious misconduct that were proved?

iv) Was the sanction imposed one that could properly have been imposed?

In addition, the GMC asks that we consider a further issue, which Mr Hare submits is of general importance, namely whether it is open to a fitness to practise panel to conclude on the basis of a series of findings of non-serious misconduct that they collectively constitute serious misconduct. I will return to this point in dealing with issue 3 above.

Before dealing with these issues, it is necessary to recite the statutory background and to set out some of the principles to be derived from governing authority.

Statutory background

The Act has been amended several times in recent years, and the authorities dealing with its effect sometimes deal with the different language of previous versions. It is, therefore important to have in mind the current wording that was applicable in this case as follows.

Section 35C headed "Functions of the Investigation Committee" provides as follows:-

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

(a) a fully registered person; …

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; …

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

Section 35D headed "Functions of a Fitness to Practise Panel" provides as follows:-

"(1) Where an allegation against a person is referred under section 35C above to a Fitness to Practise Panel, subsections (2) and (3) below shall apply.

(2) Where the Panel find that the person's fitness to practise is impaired they may, if they think fit—

(a) except in a health case or language case, direct that the person's name shall be erased from the register;

(b) direct 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

(c) direct 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 Panel think fit to impose for the protection of members of the public or in his interests.

(3) Where the Panel find that the person's fitness to practise is not impaired they may nevertheless give him a warning regarding his future conduct or performance …"

Section 40 of the Act provides as follows:-

"(1) The following decisions are appealable decisions for the purposes of this section, that is to say—

(a) a decision of a Fitness to Practise Panel under section 35D above giving a direction for erasure, for suspension or for conditional registration or varying the conditions imposed by a direction for conditional registration; …

(4) A person in respect of whom an appealable decision falling within subsection (1) has been taken may … appeal against the decision to the relevant court.

(7) On an appeal under this section from a Fitness to Practise Panel, the court may —

(a) dismiss the appeal;

(b) allow the appeal and quash the direction or variation appealed against;

(c) substitute for the direction or variation appealed against any other direction or variation which could have been given or made by a Fitness to Practise Panel; or

(d) remit the case to the Registrar for him to refer it to a Fitness to Practise Panel to dispose of the case in accordance with the directions of the court,

and may make such order as to costs … as it thinks fit …"

The relevant authorities

It is well-established that in appeals of this kind, whilst the appeal under section 40(1)(a) of the Act is from the fitness to practise panel's "direction for erasure, for suspension or for conditional registration", the doctor may challenge the findings of misconduct that lead to that result (see Preiss v. General Dental Council [2001] 1 WLR 1926 per Lord Cooke giving the judgment of the Privy Council at paragraph 2). It is equally clear that decisions of a fitness to practise panel that do not lead to the results mentioned in section 40(1) may be challenged by way of judicial review (see, for example, Dowd v. The General Medical Council [2003] EWHC 659 Admin (per Forbes J at paragraph 2).

A dichotomy has grown up between findings of "misconduct" and findings of "serious misconduct" which requires a little historical explanation. Before the present section 35C of the Act was introduced by the Medical Act 1983 (Amendment) Order 2002, the GMC needed to show that the doctor had been guilty of "serious professional misconduct". In the well-known case of Meadow v. The General Medical Council [2007] QB 462, the Court of Appeal (Auld and Thorpe LJ, Sir Anthony Clarke MR dissenting, though not specifically on this point) held obiter (at paragraph 198 of Auld LJ's judgment) that it was inconceivable that the change "should signify a lower threshold for disciplinary intervention by the GMC". Neither side has contended before us that this was not the correct position.

As regards this court's approach to a reconsideration of findings of misconduct by a fitness to practise panel, there have been many judicial statements to which we have been referred. A recent authoritative example is Southall v. The General Medical Council [2010] EWCA Civ 407, where Leveson LJ (with whom Dyson and Waller LJJ agreed) said at paragraph 47 that it was "very well established that findings of primary fact, particularly if founded upon an assessment of the credibility of witnesses, are virtually unassailable", so that the appellant must establish that the "fact-finder was plainly wrong" and "the court should only reverse a finding on the facts if it "can be shown that the findings … were sufficiently out of tune with the evidence to indicate with reasonable certainty that the evidence had been misread".

It has also been made clear in many cases that there is no general duty on the fitness to practise panel (or its predecessor professional conduct committee) to give reasons for its decision as to matters of fact, particularly where the decision depended on the credibility of witnesses (see Gupta v. The General Medical Council [2002] 1 WLR 1691 per Lord Rodger giving the decision of the Privy Council at paragraphs 11-15). Dr Schodlok placed particular reliance on the judgment of Cranston J in Cheatle v. The General Medical Council supra, who extracted (at paragraph 30 of his judgment) from the passage I have mentioned in Gupta supra Lord Rodger's indication at paragraph 14 that there might exceptionally be cases where the principle of fairness required the panel to "give reasons for their decision even on matters of fact". He found the case before him to be one such case, because of the peculiar nature of the evidence. Another such case on the facts was Southall supra, where the Court of Appeal held that the panel was required to give reasons for rejecting the doctor's defence at paragraphs 55-63 in the judgment of Leveson LJ.

Finally in this connection, it is worth noting the numerous authorities that make clear two things. First, they make clear that the fitness to practise panel is the body best equipped to determine matters of sanction. Secondly, they make clear that that is because professional discipline is not concerned with punishment but with the protection of the public and the maintenance of the standards and reputation of the profession as a whole (see paragraph 21 in Gupta supra, paragraph 28 of the Privy Council's decision in Marinovich v. The General Medical Council [2002] UKPC 36 delivered by Lord Hope, Raschid v. The General Medical Council [2007] 1 WLR 1460 per Laws LJ (with whom Chadwick LJ and Sir Peter Gibson agreed) at paragraphs 16-20).

Issue 1: Did the Panel take into account the proven incidents of non-serious misconduct in determining whether Dr Schodlok's fitness to practise was impaired?

This is the point for which Black LJ gave permission to appeal.

Dr Schodlok contended that, on a fair reading of the Panel's decision, it is clear that, although the Panel recited the need to take into account only findings of serious misconduct in determining whether her fitness to practise was impaired, when it came actually to doing so, it took into account, not only the allegations of serious misconduct which it had found proved, but also the non-serious misconduct findings that it had found proved. She pointed particularly to the language used by the Panel, for example when it said: "[t]he Panel's concerns, in the main, relate to [Dr Schodlok's] behaviour towards professional colleagues, particularly towards subordinate staff members. [Dr Schodlok has] demonstrated a pattern of behaviour, especially when challenged, whereby [Dr Schodlok] responded inappropriately, and in a manner not befitting a doctor".

Mr Ivan Hare, counsel for the GMC, submitted in response that this is an unfair reading of the Panel's decision. Instead, he submitted that the Panel used the term "colleagues" in the plural, rather than in the singular to refer only to Mr Marshall, because it had just referred to paragraphs 41 and 46 of Good Medical Practice (May 2006 edition), which referred to aspects of doctors' behaviour towards their "colleagues" on five occasions.

In my judgment, it is important to consider the decision of the Panel as a whole. It is unhelpful to pick and choose snippets which support one or other point of view without considering the approach of the Panel in its entirety. Having undertaken that exercise, however, I have concluded that it cannot fairly be said that the Panel took no account of the findings of non-serious misconduct in determining whether or not Dr Schodlok's fitness to practise was impaired.

It is true that, in dealing with impairment, having heard submissions specifically directed to the point and after determining whether the individual charges were proven or not, the Panel started by saying that: "[the Legal Assessor has] reminded the Panel that it first has to decide whether … any misconduct is serious … If the Panel decides that the facts do not amount to serious misconduct that would automatically mean that the doctor's fitness to practise is not impaired". But the Panel then went on to make clear that its main concern was about: "[Dr Schodlok's] behaviour towards professional colleagues, particularly towards subordinate staff members" because Dr Schodlok had "demonstrated a pattern of behaviour, especially when challenged, whereby [she] responded inappropriately, and in a manner not befitting a doctor" and "[t]he Panel's concerns, in the main, relate to [Dr Schodlok's] behaviour towards professional colleagues" and "[h]aving considered all the evidence, the Panel is of the view that conditions can be formulated to address the behaviour which gave rise to its findings of serious misconduct and impairment, and the concerns highlighted by the Panel". The latter passage in particular demonstrates that the Panel was, by the sanction stage, not merely considering addressing the serious misconduct found but also its previously expressed concerns which were the pattern of Dr Schodlok's behaviour towards colleagues and subordinate staff members. Those concerns must have gone beyond the incidents that founded the findings of serious misconduct since all those concerned only Mr Marshall, and no other colleagues or staff members.

In addition, one further passage in the Panel's decision seems to me to be important. That is where, having set out separately the findings that did not amount to misconduct, those that did amount to misconduct, and those that amounted to serious misconduct, the Panel said generally that "[d]octors occupy a position of privilege and trust in society and are expected to uphold proper standards of conduct" before turning to Dr Schodlok's particular position and saying that "[the Panel was] of the view that [Dr Schodlok's] actions and behaviour towards professional colleagues repeatedly fell seriously short of those expectations. The public and patients have a right to expect that a doctor will not behave in a rude and/or verbally aggressive manner". The use of the word "repeatedly" indicates that the Panel had in mind staff other than Mr Marshall, since it would otherwise be inapt. And just two paragraphs later, the Panel says that "[i]n all the circumstances, the Panel has determined that the facts found proved amount to serious misconduct". This seems to indicate that the Panel was relying on all the proved charges accumulated together.

In all the circumstances, on a fair reading of the Panel's decision, it seems to me that the Panel took into account the entire run of serious and non-serious misconduct findings in determining whether Dr Schodlok's fitness to practise was impaired; or at least those non-serious findings that related to colleagues or subordinate staff members i.e. NSM2 and 3 relating to Mr Marshall, and NSM5 and 6 relating to others. This was not in accordance with the Legal Assessor's advice, because the Panel had accepted that only serious misconduct could give rise to a finding of impairment. Accordingly, the matter will need (subject to what follows) to be sent back to the Panel to reconsider its finding of impairment.

It follows from what I have said that, since the Panel did take into account its findings of non-serious misconduct in determining impairment, Judge Sycamore was wrong not to have allowed Dr Schodlok to argue those grounds on appeal. He was wrong to say at paragraph 11 that "it was only in relation to [the four findings relating to Mr Marshall] that the Panel had determined that they amounted to serious misconduct which impaired the appellant's fitness to practise and upon which the sanction was based". He was also wrong to say, as he had at an early stage of the hearing, that "only those four findings of fact could properly be the subject of the appeal" under section 40 of the Act. Since the Panel had relied upon the non-serious misconduct findings to decide upon impairment, it ought to have been open to Dr Schodlok to appeal those findings to the judge.

All that said, it is worth recording that the position was different before us when we considered the renewed permission to appeal application, because we took the view that even if a section 40 appeal were open to Dr Schodlok in relation to the non-serious misconduct findings, that appeal could await a time after the Panel had had an opportunity to make a re-determination following this appeal.

Issue 2: Was the Panel right to find each of the four instances of serious misconduct proved?

I shall deal now, as briefly as I can, with each of the four individual findings of serious misconduct. The second and third findings are two parts of the same incident on 12^th February 2010 and must be treated together.

Serious Misconduct 1: Shouting at Mr Marshall in the presence of Patient B on 25^th January 2010

I can summarise quite shortly the evidence in relation to this charge. Mr Marshall described what happened when he and Dr Schodlok were attending patient B on 25^th January 2010. He described being told to get out of the way (a charge that was found proved but not to have amounted to misconduct) and that he had acted incorrectly so the patient would need surgery (which formed the basis of NSM2). Then, when asked about Mr Schodlok's demeanour, Mr Marshall said: "I have to say that throughout my dealings with Dr Schodlok it was very rare for me to have a conversation in which I did not feel she was being rude, blunt and on this occasion she was, I would say, very agitated. I found her at the time to be quite intimidating and I found the whole tone and content of the conversation to be inappropriate to be carried out in front of a patient".

When Dr Schodlok cross-examined Mr Marshall about this incident, the question related to Mr Marshall's supervisor, Julie Gray, speaking to him about his behaviour on that day. He was then asked whether he apologised to Dr Schodlok about his behaviour and he said: "I came to see you in your consulting room, and I wanted to get rid of whatever tension was that was going on because every time I had to work in the same environment as you, it seemed to end with you shouting at me, so I came to see you …". After an irrelevant exchange, Dr Schodlok said: "I also object to the fact that you were saying that I was shouting to you all the time. This is not true?" Mr Marshall answered "You screamed at me that day".

Mr Hare relied on Dr Schodlok's evidence on SM1, though that was, to say the least, exiguous. He also relied on the fact that Dr Schodlok shouted at the Panel when asking for more time. But the suggestion that she had shouted at Mr Marshall on 25^th January 2010 was simply not put to her in cross-examination and she did not give any evidence in chief. She did, however, deny that she told Mr Marshall he had messed up and that patient A would now need surgery (NSM2), and that she was agitated, irritated or annoyed. Later she accepted that it had been annoying for her because she could not treat the patient properly. On another occasion, she told the Panel that she did not "shout at people in front of patients".

It can be seen from this evidence that Mr Marshall did not say in cross-examination that Dr Schodlok had shouted at him in the presence of patient B, only that she had screamed at him that day. He was not in fact being asked about the incident in front of patient A, only about what happened when he came to discuss the matter afterwards. Crucially, however, the allegation that Dr Schodlok shouted at Mr Marshall on 25^th January 2010 in front of patient A was not put to her.

In these circumstances, as it seems to me, there was simply no evidence before the Panel upon the basis of which it could have found SM1 proved. The reasons it gave did not address this problem, but simply sought to draw an inference from other evidence given by Mr Marshall. Such an inference was not an available one in the circumstances I have described. The Panel was, in my judgment, plainly wrong, and the finding that Dr Schodlok was guilty of SM1 cannot stand.

Serious Misconduct 2 and 3: Being rude and verbally aggressive towards Mr Marshall when he reminded Dr Schodlok that patient C was waiting to be seen, and again when she attended upon patient C

Again, I will try to summarise the evidence on SM2 and SM3 quite briefly. It is important to remember that the charges relate to two specific times: first, when Mr Marshall reminded Dr Schodlok that patient C was waiting, and secondly when she attended patient C. Mr Marshall said in chief that his recollection of the incident was patchy, but he remembered the main points. His exact words were then as follows:-

"… firstly I would like to say that communication between myself and Dr Schodlok was, as usual, blunt and she was speaking to me in a very patronising and very aggressive tone. She asked me to apply a cast so that she could manipulate somebody's arm … I applied the cast. She said I had done it wrong in front of the patient. I objected to that and suggested that we have a conversation later again. She just said that I had done my job incorrectly …"

Mr Marshall was then asked about waiting for the doctor, and he gave a lengthy answer in which at no point does he say that Dr Schodlok was rude or aggressive on the two occasions charged. In relation to the first occasion, he said that he "felt he was being spoken to inappropriately again", and in relation to the second occasion attending the patient, he said "[i]t was at that point that she decided that I had done my job incorrectly and said so in front of the patient". Later, Mr Marshall returned to the first occasion and said "I remember her saying I should wait for her and I should not do a thing until she directed me to …".

In her cross-examination, Dr Schodlok expressly denied that she had been rude and abrupt to Mr Marshall on the first occasion. Before that, she had given a lengthy explanation of her side of the story, in which she did not accept that she had been rude or aggressive at any stage. Dr Schodlok relied on the evidence of Dr Boddu Siva Rama ("Dr Boddu"), but though he was cross-examined about events in relation to patient C on 12^th February 2010, he did not see what happened on either the first occasion or the second occasion, which were the subject of SM2 and SM3 respectively. As he himself said, he witnessed what went on in the open clinic area when there was an exchange between Dr Schodlok and Mr Marshall in relation to patient C after the attendance, but not what went on in that patient's presence or when Mr Marshall went to remind Dr Schodlok that the patient was waiting.

Finally, Dr Schodlok also relied on the letter that she wrote to the clinical director in the orthopaedic department at the hospital on 15^th February 2010, just 3 days after the incidents that gave rise to SM2 and SM3. That letter accused Mr Marshall of behaving angrily on the first occasion, and of running off when Dr Schodlok asked him why he had removed her plaster. The letter did not admit being rude or aggressive to Mr Marshall on the particular occasions charged.

The Panel's reasons describe how they inferred from the description of the scene that it was more likely than not that Dr Schodlok was rude and aggressive to Mr Marshall. Once again, in my judgment, these were not conclusions open to the Panel on the available evidence. It was again not a question of accepting Mr Marshall's evidence and rejecting Dr Schodlok's evidence. There was simply no evidence that Dr Schodlok had been rude and aggressive to Mr Marshall on the specific occasions charged, namely when he went to remind her that patient C was waiting and when she attended patient C. It is true that Mr Marshall made general allegations about Dr Schodlok behaving inappropriately and even rudely. But that is not enough to find on a balance of probabilities that Dr Schodlok had been rude and aggressive on two specific occasions when Mr Marshall could not recall that she had. All he said was that Dr Schodlok had behaved inappropriately on the first occasion and had told him he had done the procedure wrongly or incorrectly on the second occasion.

Allowing all proper deference to the Panel as finders of fact, I have reached the clear conclusion that these findings relating to patient C on 12^th February 2010 were not findings to which the Panel was, on the evidence before it, entitled to come, and they therefore cannot stand.

Serious Misconduct 4: Dr Schodlok refused Mr Marshall's request for further investigations into patient D's calf pain

The evidence on this charge (SM4) was intimately inter-related with the evidence on NSM4, which charged that Dr Schodlok did not act on potential symptoms of deep vein thrombosis (DVT) in relation to patient D. One might have thought that the charge of not acting on potential symptoms of DVT was more serious than the charge of refusing Mr Marshall's request for further investigations into the patient' calf pain. But ultimately they come to the same thing, because Dr Schodlok would presumably have been justified in refusing Mr Marshall's request for further investigation if, but only if, she had reached a sustainable clinical judgment that no further investigation was required.

There was a large body of evidence before the Panel on what should be done with a patient such as patient D, who was complaining of calf pains or cramps when her lower leg was in a plaster. The GMC called Mr Robert Helm, a consultant orthopaedic surgeon, as an expert. He said that to disregard the matter when patient D complained of swelling or cramp in the calf would "definitely fall below a reasonable standard". Two other consultant orthopaedic surgeons were, however, called to give evidence by Dr Schodlok. They were Mr Graham Radcliffe and Mr Christopher Robert Constant. Mr Radcliffe said that small calf vein thromboses below the knee were of low embolic potential, that treatment with Warfarin carried risks, and was not mandatory in such cases. He said that pain should always be investigated as to its cause, but whether "that requires imaging or a clinical opinion depends on the clinical features of the case". He said that in general terms if he could retain the cast and the cast is doing a good job, he would do, and he would scan the proximal veins rather than necessarily the calf vein. He concluded that the necessary investigation might only run to taking a careful history and clinical examination.

Mr Constant gave a long explanation of the risks of treating DVT in the calf. He said that you had to look at a spectrum and to consider seriously whether the treatment is worse than the potential condition. He accepted, however, that he did not know the details of the case.

Dr Schodlok also gave detailed evidence in cross-examination as to what she actually did in relation to patient D's cramps as follows:-

"… well, this patient I have seen. She was at the time – or she was at the time a very overweight lady and she had a plaster cast on for a couple of weeks or so, and she was not on thrombosis prophylaxis. She was seen by Mr Tofighi who should have put her on it because if she is in a plaster cast and if she is overweight, this is an indication for thrombosis prophylaxis. I have realised that, and I have examined the patient.

I have examined the whole leg. I have asked her to move her toes. I have assessed the swelling above and below the cast. I have assessed whether the cast is loose or tight, and I have seen that she has been picking at the back of the cast. Yes, I have seen that as well. I have made a clinical decision and that included taking into consideration her symptoms, which she described to me as cramps in her legs. I have made a balanced decision at the time. Cramps in leg does not mean that a patient has DVT. That is normally pain in the leg, and she told me she has got cramps in the leg.

The next thing is I have – so I have examined her. I have listened to her, and I have talked to her about the situation, and I have talked to her about DVT prophylaxis, and I have talked to her that she should be on. This is something that needs to be offered to the patient. This is something that the GP can do. He can commence on it or we can commence on it. It should have been actually when the plaster was applied, but it was not.

Anyway, she has had these symptoms. My clinical judgement was that the risk of her with the symptoms, and examination having a DVT was firstly not high, secondly, a DVT is diagnosed – a DVT is a vein thrombosis, a deep vein thrombosis which is a thrombus in the vein from the knee upwards. It is not a thrombus in the vein downwards. These are calf vein thrombosis, so there was no need for me to take the plaster off if I suspected a deep vein thrombosis.

… so for two reasons I have asked this plaster to be trimmed, firstly so that I could examine that place better and then say for sure that we do not need an ultrasound scan, and secondly of course to make it more comfortable, but the first priority was also to look at it in a better way, so I have acted on this patient's symptoms.

… I do not agree [that she had a thrombosis in her calf], no. I am saying that this patient had maybe – maybe she had [non-significant] calf vein thrombosis. … A calf vein thrombosis does not require treatment. The guidelines say very clearly that it is unnecessary to treat calf vein thrombosis, and it can be harmful because there are risks. There are side effects with Warfarin treatment, particularly if it is being given six months long.

My other consideration was of course there maybe the first instinct is okay maybe we will take the plaster off, and we will have a look and we always consider that possibility yes, but in patient of that size with an ankle fracture, you have to also consider that if that needs surgery, there is a much higher risk of this not healing properly and of this getting infected. I have taken all these considerations into my clinical decision. I have made a decision".

Dr Schodlok was then asked whether she was asked by Dr Marshall to investigate the situation and she refused, to which she replied "I have said to him I have given the instructions to trim the cast, and he has refused to do so".

The Panel made its findings on the basis that "[a] number of the professional witnesses" had told them that "swelling and pain are potential symptoms of a [DVT]", and that Dr Schodlok had advised the patient on toe mobilisation and non-weight bearing, referring to prophylactic treatment and referred the patient back to her GP. Its main finding was that the Panel accepted the expert evidence that "if you had considered the possibility of DVT and that prophylactic treatment was required to prevent propagation of the thrombus this should have been instigated in the hospital". It seems that these were its reasons for finding that Dr Schodlok was at fault in telling Mr Marshall that she was "not going to investigate further".

I find this reasoning strange since it was perfectly plain from the evidence and the medical notes that Dr Schodlok had considered DVT. The question, therefore, was not whether "if [Dr Schodlok] had considered the possibility of DVT and that prophylactic treatment was required", the treatment should have been instigated at the hospital (as opposed to by the GP), but whether such treatment should, as a matter of proper professional practice, have been instigated by Dr Schodlok in this case. The experienced orthopaedic surgeons who gave evidence about this (though not themselves vascular specialists) did not agree. Messrs Radcliffe and Constant thought that such treatment could do more harm than good, and Dr Schodlok said she had reached a clinical judgment to trim the cast and not to scan or treat with Warfarin. It is hard to see how this clinical judgment can be serious misconduct without the Panel finding that no reasonably competent and professional orthopaedic registrar could have acted as she did. No such finding was made and it could even be that any such finding was not open to the Panel on the evidence it heard. Moreover the charge in question was elliptically and inappropriately framed for such a serious allegation. In my judgment, the Panel was simply wrong to have ignored the differing expert opinions, even if Mr Helm was better apprised of the details of patient D's case. It would have been open to the GMC to cross-examine Messrs Radcliffe and Constant on the details of patient D, but it chose not to do so.

In these circumstances, I have concluded that the Panel's decision on SM4 was also wrong and cannot stand.

Issue 3: Was the Panel right to find that Dr Schodlok's fitness to practise was impaired as a result of the instances of serious misconduct that were proved?