England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		19th November 2004

Mr Justice Silber:

I. Introduction

1. Dr. Stephen Boodoo appeals from a decision of the Health Committee ("HC") of the General Medical Council ("GMC") given on 19 May 2004 by which it directed that for a period of 24 months, his registration as a doctor should be conditional upon compliance by him with conditions, namely that he:-

(i) limits his alcohol consumption in accordance with his medical supervisor's advice, abstaining absolutely if he or she so requires;

(ii) complies with any arrangements made by his medical supervisor for the testing of breath, blood, urine and/or hair for the recent and long-term ingestion of alcohol;

(iii) remains under the care of a general practitioner and to allow his medical supervisor to exchange information with his general practitioner about his condition and the treatment which he is receiving;

(iv) allows his medical supervisor to exchange information with any registered medical or dental practitioner responsible for his care about his condition and the treatment, which he is receiving;

(v) allows his medical supervisor to exchange information about his medical history and the performance of his professional duties with a designated senior officer of the health authority;

(vi) shall confine his hospital practice to National Health Service posts where his work could be supervised by another fully registered medical practitioner;

(vii) shall not undertake any work as a locum;

(viii) shall obtain his medical supervisor's prior approval of the suitability of any post for which he may consider applying;

(ix) shall cease work immediately if his medical supervisor so advises;

(x) before commencing any medical practice, shall inform his employer and any potential employer in respect of medical work requiring registration with the GMC that he is subject to the conditions imposed by the Health Committee and shall inform that person of the preceding four conditions restricting his practice and of the name of his medical supervisor.

2. The main challenge of Mr. George Hugh-Jones, counsel for the appellant relates to the first condition, which requires the appellant "to limit [his] alcohol consumption in accordance with [his] medical supervisor's advice, abstaining absolutely if he so requires" ("the alcohol consumption limitation condition"). The appellant seeks an order that the conditions imposed on 19 May 2004 be quashed and that the matter be remitted to the HC to reconsider the matter. This appeal is brought under section 40 of the Medical Act 1983 as amended, which gives the court power to make such orders.
3. This appeal is also governed by CPR Part 52, which means that it can only be allowed if the HC's decision:-

"was (a) wrong, or (b) "unjust because of a serious procedural or other irregularity in the proceedings in the lower court" (CPR Part 52.11 (3)).

II. The Background to the Decision of 19 May 2004

4. In June 2000, the appellant came to the attention of the GMC after he was convicted of failing to supply a specimen of breath, of common assault and of using a telecommunications system to send an obscene message. The appellant was placed on probation and was fined.
5. The appellant's case was initially considered by the Preliminary Proceedings Committee ("PPC") under the GMC's Conduct Procedure. The appellant's representative submitted to the PPC that the appellant was then unfit for work because of ill-health. A report was provided from a consultant psychiatrist, who was then treating the appellant and who stated that in 1997 the appellant had a classic depressive episode leading up to which he had been drinking excessive amounts of alcohol and that he had again been referred with depression in early 2000, having returned to heavy drinking in 1999 after his marital situation had become very fraught.
6. After the appellant's representatives asked that his case be referred to the HC rather than the Professional Conduct Committee, the PPC adjourned its consideration of the case on 25 July 2000 in order to obtain medical reports on the appellant from Dr. D. P. Srinivasan, a consultant psychiatrist. He considered that the appellant had been suffering from depression and that he should abstain totally from alcohol in the future. Dr. K. D. Fletcher, another Consultant Psychiatrist, reported on 9 January 2001 that there was no evidence of any current major depressive disorder being suffered by the appellant, but that he had a "history of harmful use of alcohol". He considered that the appellant:-

"would be wise to continue to abstain from alcohol … because there is a clear history that when he drinks in response to negative life events, his mood is impaired and his problem solving capacity is also impaired".

7. The Screener for Health at the GMC accepted the view that the appellant was fit to practice, subject to some recommendations. Accordingly, on 19 February 2001, the GMC invited the appellant to comply with some undertakings, one of which was that he should abstain absolutely from the consumption of alcohol. The appellant duly gave that undertaking.
8. In Spring 2001, the GMC considered a complaint about the professional conduct of the appellant. The PPC eventually concluded that the issues raised were not sufficiently serious to raise a question of serious professional misconduct. It also agreed that as the appellant was already under the GMC's Health Procedures, the matter should be referred to a Health Screener of the GMC for consideration.
9. In a further report dated 29 August 2001, Dr. Fletcher noted that the appellant was making good progress with no evidence of major depressive disorder. He had received favourable reports on the way in which the appellant was performing his duties as a medical practitioner, but he noted that the appellant had in March 2001 reported that he had the maximum weekly alcohol consumption of one pint of beer a week which showed that he was not complying with his undertaking to the GMC to abstain from consuming alcohol. Dr. Fletcher recorded that the appellant had said to him that he would stop drinking completely.
10. The Health Screener, who had received Dr. Fletcher's report, reminded the appellant in a letter dated 30 October 2001 of his undertaking not to consume alcohol. It was decided that the appellant's case should not at that time be referred to the HC.
11. By a report dated 3 April 2002, Dr. Fletcher reported that the appellant had not abstained from alcohol and that he was continuing to drink approximately two pints of beer per fortnight. Apart from the fact that he had recently engaged in an episode of excessive drinking, Dr. Fletcher noted that the appellant had done "extremely well to maintain personal stability over a period of time which continues to be difficult for him". In the opinion of Dr. Fletcher, the appellant was fit to practice but in the light of the latest blood test, he considered that it was wise to continue with formal supervision for a further period of three months. The Screener for Health of the GMC received Dr. Fletcher's report and in a letter dated 22 May 2002, he told the appellant that he was concerned about the appellant's continued drinking in breach of his undertaking to abstain absolutely from the consumption of alcohol. He also stated to the appellant in that letter that the Screener had decided on that occasion in view of "your excellent progress" and Dr. Fletcher's positive report, that his case would not be referred to the HC at that time.
12. In September 2002, Dr. Fletcher saw the appellant again and in his report dated 25 September 2002, he noted that the appellant was not complying with the undertakings which he had given because first, he had not abstained absolutely from the consumption of alcohol and second, he had not registered with a general practitioner. Dr. Fletcher noted that the appellant had made "tremendous progress from the time when he first presented to the [GMC]".
13. By a letter dated 4 November 2002, the Health Screener informed the appellant of his obligations to comply with the undertakings, which included one to abstain absolutely from the consumption of alcohol and noted that the appellant had continued drinking. The Screener indicated that his case would be reviewed. That review occurred in April 2003 and by a report dated 22 April 2003, Dr. Fletcher stated that it was no longer necessary for the appellant to abstain absolutely from alcohol, but rather that he should limit his drinking to safe limits of not more than three units on any one occasion and not more than a maximum of 21 units per week but that in addition he should also abstain completely if requested to do so. Dr. Fletcher noted that the appellant had shown a high degree of co-operation with supervision and a responsible attitude towards his own welfare. His opinion was that formal supervision of the appellant could be discontinued.
14. The GMC duly wrote to the appellant on 19 May 2003 relaxing the appellant's undertakings and inviting him to agree, among other things, "to limit your alcohol consumption in accordance with your medical supervisor's advice, abstaining absolutely if he so requires". The appellant duly gave those undertakings by a letter dated 3 September 2003. I interject to point out the similarity between this undertaking and the alcohol consumption limitation condition, which the appellant is challenging on this appeal, although the appellant's right to continue practising is now for the first time dependent on him continuing to satisfy this condition.
15. On 22 October 2003, Dr. Fletcher, who had recently seen the appellant again, reported that there had been significant recent increases in indices of excessive alcohol consumption. He explained that the appellant was fit to practice on a limited basis, but that he "should again agree to abstain from alcohol … if he is to avoid further liver damage". By a letter dated 4 November 2003, the Screener for Health notified the appellant that he should, among other things, totally abstain from alcohol and by a letter dated 6 December 2003 the appellant agreed to these conditions.
16. Unfortunately, matters deteriorated because by the time of Dr. Fletcher's next report of 16 February 2004, the appellant had admitted to Dr. Fletcher that he had been going out drinking almost every night and that he was consuming 30-40 pints each week. Dr. Fletcher reported a marked deterioration in the appellant's liver function tests in October 2003 and that "an indicator of fatty liver damage has increased substantially and worryingly". Dr. Fletcher considered that the appellant's fitness to practice was "seriously impaired as a result of continuing harmful abuse of alcohol". He recommended that there should be an additional undertaking obtained from the appellant with the effect that he should abstain absolutely from alcohol. He also said that the appellant should remain under formal supervision which would continue for a minimum of one year after the appellant has "absolutely abstained" from alcohol.
17. Having received that report, the Screener for Health decided to refer the appellant's case to the HC. The appellant was asked to agree to be medically examined by other persons than the Screener and he agreed to this, but he chose not to nominate any other additional doctors to examine him.
18. By a letter dated 16 April 2004, the appellant was given formal notice that the GMC was referring his case to the HC, when he was told that:-

"The Committee will consider whether your fitness to practice is severely impaired by reason of substance abuse. They may also consider, in the light of any evidence or information placed before them, whether your fitness to practise is seriously impaired by reason of any other physical or mental condition".

19. Reports on the appellant were obtained not only from Dr. Fletcher, but also from two other consultant psychiatrists, namely Dr. Benjamin John and Professor C. McWilliams. I will explain in due course what they said. There were no complaints about the appellant's ability or his performance as a physician. In fact, there were and have been many favourable comments about his abilities as a physician.
20. The HC heard the appellant's case on 19 May 2004 and, as I explained, it directed that for 24 months the appellant's continued registration would be conditional upon his compliance with the conditions set out in paragraph 1 above. When I deal with the contentious issues, I will explain how the HC reached its decision.

III. The Appellant's Complaints

21. Although the appellant originally relied on five grounds, he has now abandoned all but two of them, which he is now continuing to pursue. Those two outstanding complaints were that:-

(a) the HC was not entitled to conclude that the appellant was suffering from alcohol dependence (as described in ICD F10.2). The diagnosis was not canvassed in evidence or raised by the HC and so the appellant was not given the opportunity to respond to this suggestion ("The F10.2 Issue"); and that

(b) the medical assessors exceeded their function as defined under rules at Schedule 2, Paragraph 5 of The General Medical Council Health Committee (Procedure) Rules Order of Council 1987-1997 (1987 No. 2174) ("the Rules") and gave their opinion as to the facts. Subject to an explanation from the Health Committee to displace it, there is an inference that the medical assessors raised the diagnosis of alcohol dependence ("The Medical Assessors Issue").

IV. The F10.2 Issue

22. The basis of the appellant's case is that there was a breach of the common law duty of fairness in raising a new medical diagnosis, namely ICD F10.2, without the appellant being given the opportunity to address it or give evidence on it. I should explain that the term "ICD" refers to "The International Statistical Classification of Diseases and Related Health Problems (10^th Edition 2002)".
23. This submission focuses on the findings of the HC, which were, with my paragraph numbering added, that:-

"1. The Committee have considered the advice given to them by the medical assessors and have judged your fitness to practice to be seriously impaired by reason of a condition classified in ICD – 10 Classification of Disorders as F10.2 – alcohol dependence syndrome.

2. In making this decision, the committee has been advised by the medical assessors that you have a strong desire to consume alcohol, difficulty in controlling your intake and persistently used alcohol by clear evidence of its harmful consequences" (Page 41 D-G of transcript of proceedings).

24. It is appropriate now to explain how F10.2 (Dependence Syndrome due to Alcohol) can be established and how it is different from F10.1 (Harmful Use of Alcohol).
25. For harmful use of alcohol to be established (F10.1), it has to be shown that:-

"A. There must be clear evidence that the substance use was responsible for (or substantially contributed to) physical or psychological harm, including impaired judgment or dysfunctional behaviour.

B. The nature of the harm should be clearly identified (and specified)

C. The pattern of use has persisted for at least one month or has occurred repeatedly within a 12-month period

D. The disorder does not meet the criteria for any other mental or behavioural disorder related to the same drug in the same time period (except for acute intoxication)".

26. In order to establish F10.2 (Dependence Syndrome due to Alcohol), at least three of the following have to be proved:-

"A. A strong desire or sense of compulsion to drink

B. Difficulty in controlling the amount drunk

C. Physiological withdrawal state after drinking stops, with the possible use of alcohol to relieve this

D. Evidence of tolerance may appear

E. Progressive neglect of alternative pleasures and interests

F. Persistence of drinking in spite of evidence of harmful effects".

27. The basis of the appellant's complaint is that although, as I have explained, the HC found Alcohol Dependence on the part of the appellant under F10.2, this diagnosis had not been canvassed in evidence at the HC hearing or raised by the HC so that the appellant was not given the opportunity to respond to it.
28. Mr. Hugh-Jones explains that each of the medical examiners had separately and had specifically concluded that the appellant was suffering from F10.1 and that this is apparent from the reports of Dr. John, Dr. Fletcher and Professor McWilliams. He further points out that none of the examiners recorded any doubt about the classification into which this case should fall and that indeed, Dr. Fletcher had said in his report of January 2001 that there was then no evidence of F10.2.
29. Mr. Hugh-Jones' submission is that the rules of the HC are designed to give notice to the medical practitioner of the nature of the condition, which it is alleged to have caused him serious impairment. In this case, he says that the GMC limited its case to the assertion of F10.1 with the result that he contends that it was unfair of the HC to raise a new medical diagnosis without the appellant being given the opportunity to address it or to adduce any evidence relating to F10.2. Significantly, the appellant had stated in evidence to the HC that he did not consider himself to be dependent on alcohol. Mr. Hugh-Jones contends first that therefore the appellant was meeting a case focussed on F10.1 and that his evidence related to it and second, that the GMC did not raise F10.2 as an issue, nor did they call any witnesses to support it.
30. The difficulty with accepting Mr. Hugh-Jones' submissions is that there was ample undisputed evidence from the psychiatrists, who prepared reports for the HC which would have entitled the HC to conclude that three of the ingredients of F10.2 were present so that F10.2 was a correct diagnosis. The three ingredients were first that the appellant had a strong desire to consume alcohol, second that he had difficulty in controlling his intake and third that he persistently used alcohol despite clear evidence of its harmful consequences. I will hereinafter refer to these points as "the three ingredients of F10.2".
31. Each of these ingredients were shown to exist in the evidence of the three psychiatrists, whose evidence was before the HC and which the appellant's legal advisors did not seek to challenge in cross-examination or otherwise. Indeed, Mr. Hugh-Jones accepted correctly that on the evidence, the HC was quite entitled to conclude that the appellant satisfied each of the three ingredients of F10.2. Thus, it is unnecessary for me now to give anything more than a summary of their evidence, which was not disputed or challenged in front of the HC or in front of me.
32. Thus, Dr. John referred to the appellant's continuing harmful use of alcohol and the appellant's admission that "he is still prone to misusing alcohol". He pointed out that the appellant's liver function tests in February 2004 "confirmed the continuing [alcohol] abuse then [of the appellant]" (page 68). Dr. John also referred to the appellant's inability "to control his consumption much less [to] remain abstinent". He thought that the appellant's:-

"fitness to practise [was] seriously impaired by reason of his disorder of continuing harmful use of alcohol" [68].

33. Dr. Fletcher refers to the fact that the appellant continues to drink in spite of Dr. Fletcher's instruction for him to abstain from alcohol and he also considered that the appellant's fitness to practise was "seriously impaired". He explained in his report of 28 April 2004 that the appellant's "recent relapse into heavy drinking, and therefore a demonstrated vulnerability to excessive alcohol consumption both when depressed and euthymic in mood" (page 111). He also noted that the appellant:-

"will continue to drink and try to control his alcohol consumption at a safe level, he should still be asked to abstain from alcohol" (page 111).

34. Professor McWilliams also reached three significant and relevant conclusions on the appellant. First, he records that the appellant "is clearly determined to continue to consume alcohol despite the risk this poses to his health and that it might jeopardise his ability to practice as he is in breach of GMC's undertakings" [79]. Second, Professor McWilliams wrote that the appellant was "fully aware that his continued drinking may eventually kill him, but he appears determined to continue despite this" [80]. Third, Professor McWilliams stated that the appellant is:-

"clearly determined to continue drinking despite the risk this poses to his health and that it might jeopardise his ability to practise as he is in breach of GMC undertakings" [80].

35. These conclusions together with the views of Dr. John and Dr. Fletcher justify the three significant conclusions of the HC in paragraph numbered 2 of their findings set out in paragraph 23 above that the appellant has "a strong desire to consume alcohol, difficulty in controlling his intake and persistent use of alcohol despite clear evidence of its harmful consequences".
36. Thus, in the absence of any contrary expert evidence, the HC was quite entitled, if not actually obliged, to make those three findings and then to proceed to deal with the appellant and, in particular, to impose the alcohol consumption limitation condition. Significantly, Dr. Fletcher, who had monitored the appellant since January 2001, had recommended to the HC that the appellant should be required to abstain from drinking or to limit his alcohol consumption in accordance with the medical supervisor's advice. I cannot understand how there can be any criticism of the imposition of the alcohol consumption limitation condition, especially as no cogent criticism was made of Dr. Fletcher's evidence.
37. It follows that the challenge that is made to the HC's reasons must fail because there was ample evidence to justify its decision that the appellant's conduct was of concern in the three ways which I have described and which are set out in the second sentence of paragraph 2 of their reasons and which constituted the three ingredients of F10.2.
38. In reaching that conclusion, I have not overlooked the criticism made by Mr. Hugh-Jones that the appellant had no warning that the HC would conclude that he suffered from F10.2. In my view, Mr. Hugh-Jones attaches too much importance to the precise title of the appellant's syndrome while what matters for the purpose of the conditions imposed in the HC are the three ingredients of it as set out in the second sentence of the HC's conclusions and which are set out in paragraph 23 above.
39. What is important is not the name of the syndrome suffered by the appellant, but its attributes and as I have explained, those were clearly foreshadowed and described in the three uncontradicted and unchallenged reports of the three Consultant Psychiatrists, which were the only up-to-date medical reports before the HC.
40. Mr. Hugh-Jones submits that if the appellant had known that there would have been a finding of F10.2, he would have wanted to call evidence but as I have explained, I cannot see the difference between on the one hand, the HC's finding of the three ingredients of F10.2 to which I have referred and which show the ingredient of Alcohol Dependence Syndrome and on the other hand, the HC's finding that the appellant was suffering from F10.2 Alcohol Dependence Syndrome because the latter is merely a label for the three ingredients of F10.2 as described by the three consultant psychiatrists. Even if the label of F10.2 alcohol dependence syndrome has serious adverse connotation for the appellant, it does not appear to me to matter for the purpose of determining whether an appeal can be allowed against the decision of the HC provided, as is the case, that there was clear evidence which enabled the HC to reach the conclusion that the appellant suffered from the three ingredients of F10.2.
41. I am fortified in coming to that conclusion by the fact that Mr. Hugh-Jones sensibly admitted as he had to that it was perfectly open to the HC to reach the conclusion on the existence of the three ingredients of F10.2. I ought to say that if I had been in doubt on this, I would also add that nothing has been said by Mr. Hugh-Jones about the thrust of the evidence, which the appellant could and would have actually called if he had known that the HC was considering finding that he fell in the F10.2 classification. In other words, the appellant has not been prejudiced by the failure to refer specifically to F10.2 rather than its ingredients and the decision of the HC was not wrong to find the presence of the three ingredients of F10.2, as I will explain later.
42. After I had reached my conclusions on this issue, I came across a comment by Hooper J (as he then was), which constitutes a further reason why the claimant should not succeed on the F10.2 issue. After having referred to some comments of Lord Bingham CJ in R v. The Parole Board and Others ex parte Oyston (unreported 1 March 2000 CA, BAILII: [2000] EWCA Crim 3552), Hooper J said:-

"It is well established that a court when considering reasons given by a decision-maker, must be careful not to construe them "in a pedantic and nit-picking spirit". The court should be careful "not to seize on occasional omission and infelicities" as a ground for granting judicial review or allowing an appeal (see Lord Bingham CJ also in paragraph 46 of Oyston)" (R (On the application of M) v. Criminal Injuries Compensation Panel [2001] EWHC Admin 720 [44].

V. The Medical Assessors Issue

43. Mr. Hugh-Jones submits that the medical assessors exceeded their function as defined in Schedule 2, Paragraph 5 of the 1987 Rules because subject to any explanation from the HC, there is an inference from the reasoning of the HC that the medical assessors themselves introduced the diagnosis of Alcohol Dependence.
44. Rule 16 of the 1987 Rules requires the medical assessors to perform their duties as set out in Schedule 2 of the 1987 Rules. Paragraph 5 of that Schedule provides, that:-

"(a) It shall be the duty of the medical assessors to be present at the proceedings before the Committee for which they have been chosen to act and to advise the Committee on the medical significance of the information before the Committee.

(b) Medical assessors shall give such advice on questions referred to them by the Committee, and shall also advise the Committee of their own motion if it appears to them that, but for such advice, there is a possibility of a mistake being made in judging the medical significance of such information (including the absence of information) on any particular matter relevant to the fitness to practise of the practitioner".

45. Mr. Hugh-Jones submits that the medical assessors exceeded their powers, as is shown by the passage in the Determination of the HC, which I have set out in paragraph 23 above. In respect of this advice, Mr. Hugh-Jones says that what was important was that the F10.2 diagnosis was not canvassed in evidence.
46. It was pointed out by Mr. Hugh-Jones that the appellant had said that he had not drunk through stress for three or four years and that his current consumption was social at a level which he felt able to regulate. It was also said by the appellant correctly that there had never been complaints about his ability as a physician and the reports on his performance as a physician are favourable. The thrust of Mr. Hugh-Jones' complaint is that it was unfair for deliberations to stray outside the ambit of evidence in which the practitioner had participated. He complained that although the medical assessors were entitled to explain the medical significance of evidence, in this case they had given a view of the evidence pertinent to the appellant's ability to restrict consumption and that was unfair and contrary to the rules.
47. In support, Mr. Hugh-Jones relies upon the statements of Viscount Simon LC in Richardson v. Redpath, Brown & Company Limited [1944] AC 62, where he says of the role of medical assessors that:-

"We are told that in such cases it is quite common for the medical assessor to make an examination of the workman and to report his opinion to the judge. But to treat a medical assessor, or indeed an assessor, as though he were an unsworn witness in the special confidence of the judge, whose testimony cannot be challenged by cross-examination and perhaps cannot even be fully appreciated by the parties until available for the judge to consult if the judge requires assistance in understanding the effect and meaning of technical evidence. He may, in proper cases, suggest to the judge questions which the judge himself might put to an expert witness with a view to testing the witness's view or to making plain his meaning. The judge may consult him in case of need as the proper technical inferences to be drawn from proved factors, or as to the extent of the difference between apparently contradictory conclusions in the expert field".

48. Viscount Simon then proceeds in his speech to refer to the speeches in Woods v. Thomas Wilson, Sons & Co Limited (1915) 8B.W.C.C. 288 and he says that:-

"Lord Parker in that case aptly defines the medical assessor's function as being "not to supply evidence but to help the judge or arbitrator to understand the medical evidence" – a view in which Lord Parker concurred. It would seem desirable in cases where the assessor's evidence within its proper limits is likely to effect the judge's conclusions, for the latter to inform the parties before him, what is the advice which he has received" (Page 71b – 71c).

49. No evidence has been filed or been sought on how it came about that the medical assessors gave the advice referred to in the HC's conclusions set out in paragraph 23 above. In the present case, there is nothing in the evidence to suggest that the medical assessors went outside their obligations which were either "to advise the committee on the medical significance of the information before the committee" (Paragraph 5(a) of Schedule 2 of the 1987 Rules) or to "give such advice on questions referred to them by the committee" (Paragraph 5(b) of Schedule 2 of the 1987 Rules) or to:-

"advise the committee of their own motion if it appears to them that, but for such advice, there is a possibility of a mistake being made in judging the medical significance of such information .. on any particular matter relevant to the fitness to practise of the Practitioner" (ibid).

50. Thus, I conclude that in this case, there is nothing to suggest that the medical assessors did not give their advice perfectly properly in accordance with their obligations in the Rules to which I have just referred.
51. Mr. Hugh-Jones' second point on this issue is that any such "advice" given by the assessor could not be construed as explaining the "medical significance of the evidence" pursuant to Paragraph 5(b) of Schedule 2 of the 1983 Rules. His submission is that if the advice was given by the medical assessors to correct a mistake, it would not have been a mistake in the HC's understanding (as the Rules permit) but it would have amounted to a disagreement by the HC with the conclusions of medical examiners, namely Dr. Fletcher, Dr. Jones and Professor McWilliams.
52. I am unable to accept that submission because in the absence of any evidence about the circumstances in which the medical assessors came to give their advice, there is no reason to think that the medical assessors were advising the committee "on the medical significance of the information before the committee", namely the evidence of the three experts. In any event, in the absence of any contrary evidence, the medical assessors may well have drawn the attention of the HC to the fact that first, the three ingredients of F10.2 disclosed by the three consultant psychiatrists were matters of medical significance and second, the nature of their significance. Alternatively, as I have indicated, the assessors might have been asked such questions about the medical significance of the evidence of the three experts by the HC in which case they were obliged to answer them in the way that they did. A further possible alternative position is that the medical assessors could have advised the committee if they considered that but for the advice which they tendered and which is referred to in the HC's conclusions, there was a possibility of a mistake being made in judging the medical significance of the information. This again would have been an acceptable course for the medical assessors, which fell within the Rules. Any of these situations would have enabled the medical assessors to give advice which they were legally entitled if not obliged to give under paragraph 5. Thus, it is not possible in the words of CPR 52.11.3 to say that the HC's decision was "wrong" or "unjust".
53. The final way in which Mr. Hugh-Jones puts this point is that even if the assessors were entitled or obliged to give their advice as part of their function under paragraph 5 of Schedule 2, it was unfair that the appellant did not have an opportunity to comment on the advice. He points out that in Nwabueze v. General Medical Council [2000] 1 WLR 1760, the Privy Council held that although fairness required not only that the parties should be informed what advice has been given by the legal assessor while the committee was deliberating in camera, but also that thereafter the parties should be afforded an opportunity to comment on that advice and that the committee should be able to consider these arguments before announcing their determination.
54. Ms. Kate Gallafent for the respondent contends that this decision is dependent upon the rules in force at the time when Nwabueze's case was before the GMC, but Lord Hope of Craighead giving the decision of the Judicial Committee indicated the nature of the obligation owed by the assessors in general when he explained that:-

"… the reason why the legal assessor's advice to the committee must be given or made known to the parties afterwards in public is so that the parties may have an opportunity of correcting it or of asking for it to be supplemented as the circumstances may require. In this respect, the requirements of common law would appear to be at one with those of Article 6 of the Convention, by which the Professional Conduct will be bound when the Human Rights Act 1998 comes into force" (page 1775).

55. Lord Hope went on to say that if, as the Judicial Committee had been told that it was not the practice for the parties to be invited to comment on the advice which the legal advisor gave to the committee, then:-

"… consideration should now be given to altering the practice so that, in the interests of fairness, the parties are made aware of the fact that they are entitled to comment on or to criticise the advice which has been given by the legal assessor at any stage in the proceedings so that he may consider, in the presence of the parties, whether his advice to the committee should be changed" (page 1775).

56. I will assume that there is no difference between the correct approach to the advice given by a legal assessor to the approach which should be adopted, as in the present case, by a medical assessor. I will therefore assume but not necessarily decide that in this case there was an obligation on the part of the HC to inform the parties of the advice which it had been given by the medical assessors so that the parties could then comment on the advice.
57. That fact does not determine the appeal because, as I have explained in paragraph 3 above, the appeal can only be allowed if the decision of the HC was either "wrong" or "unjust", but that has to be considered in the light of the approach of the court to a decision of a disciplinary body.
58. I did not understand Mr. Hugh-Jones to disagree with two statements relied upon by Ms. Gallafent. In the first, Richards J said in R (on the application of Arley Erlester Clark) v. United Kingdom Central Council for Nursing, Midwifery and Health Visiting [2004] EWHC 1350, that:-

"In broad terms, the approach of a court on an appeal is as follows. Although its function in respect of a statutory appeal is to conduct a re-hearing, it is one usually conducted .. on the basis of a transcript of the hearing below. The appellate court must bear in mind that the decision-making committee have the advantage of seeing and hearing the oral evidence given, and it must accord an appropriate measure of respect and weight to the judgment of the committee on measures necessary to maintain professional standards and provide adequate protection to the public: see generally Ghosh v. General Medical Council [2001] 1 WLR 1915 and Gupta v. General Medical Council [2002] 1 WLR 1691" (6).

59. Bearing in mind that the challenge in this case is to the alcohol consumption limitation condition to which it is set out in paragraph 1(1) above, this would appear to be a situation where "an appropriate measure of respect and weight" has to be given to the decision of the HC to impose that condition as it was imposing measures necessary to maintain professional standards.
60. Second, Collins J in Moody v. General Osteopathic Council [2004] EWHC 967, confirmed that the principle in relation to interference by courts with professional bodies is much the same because "this court must never act unless it is plain that in all the circumstances, the decision of the committee was one which was, as I put it, clearly wrong".
61. Focussing as I must do on the particular aspect of the decision under challenge, namely continuing the registration of the appellant as the doctor upon compliance by him with the alcohol consumption limitation condition, there was clear, concerted and unopposed expert evidence by the three consultants, Dr. Fletcher, Dr. John and Professor McWilliams to the effect that the three significant disturbing matters referred to in paragraph 23 above were present and which constituted the three ingredients of F10.2.
62. Those matters were that the appellant had a strong desire to consume alcohol, difficulty in controlling his intake, persistently using alcohol despite clear evidence of its harmful consequences. I have sought to explain in paragraphs 32 to 34 above how the evidence of the three consultant psychiatrists provides support for each of those three findings. In my view, there is nothing that could have been said by any representative of the appellant about the advice given by the medical advisors which would have had any prospect at all of persuading them to change their mind.
63. I am fortified in coming to that conclusion by the fact that the appellant's representatives did not seek at the hearing either to cross-examine any of the three doctors or to call contrary evidence, or to suggest that their evidence was in some way flawed and in particular, relating to the three ingredients of F10.2 with which I have outlined. In those circumstances, even if the medical assessor's evidence should have been communicated to the appellant, he had no evidence on submission in response, which would have undermined it. None of Mr. Hugh-Jones' submissions show that the HC's decision was wrong or unjust.
64. Indeed, it seems at least strongly arguable that it would be Wednesbury unreasonable or perverse if the HC had reached a different conclusion than that which it reached in the three matters to which I have referred.

VI Conclusion

65. Notwithstanding the able arguments of Mr. Hugh-Jones, this appeal must be dismissed.

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66. MR JUSTICE SILBER: For the reasons which have been set out in the draft judgment which has been circulated to the parties, the appeal must be dismissed.
67. MR DE MARCO: My Lord, I would simply ask for an order dismissing the appeal and for costs, which have been agreed between the parties.
68. MR JUSTICE SILBER: What are the costs agreed at?
69. MR DE MARCO: £5,000 inclusive of VAT.
70. MR JUSTICE SILBER: Thank you very much. A copy of the final version of the judgment will be available later today.