England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		27th May 2005

1. MR JUSTICE COLLINS: Dr Peter Wilson is an anaesthetist. He appeals against the finding of a Committee on Professional Performance ("CPP") that his standard of professional performance had been seriously deficient and the consequent direction that his registration should be conditional on his compliance with specified requirements during a period of 15 months. That finding and direction was made on 29th October 2004 on the 41st day of the hearing.
2. The matters which led to the proceedings before the CPP occurred over a relatively short period while the appellant was employed by the Ministry of Defence as a consultant anaesthetist at The Princess Mary's Hospital ("TPMH"), a Royal Air Force hospital in Akrotiri in Cyprus. The appellant was appointed in August 1998 and effectively ceased to work at TPMH in May 1999 following a breakdown of working relations with his colleagues in the anaesthetic department, an allegation that he had been assaulted by one of them, and a decision by his employers that he should go on what was described as gardening leave. The incidents with which the hearing before the CPP were largely concerned took place in late 1998 and early 1999.
3. It is important to bear in mind that the proceedings were under section 36A of the Medical Act 1983, which is concerned with the standard of professional performance, and not under section 36 which is concerned with serious professional misconduct and enables sanctions to be applied if such misconduct is found proved, which may extend to erasure. Miss Norton has submitted -- and it will be necessary to consider the statutory provisions to see the basis of this submission -- that in performance proceedings the CPP is concerned to inquire into the doctor's past performance to see whether overall there has been a serious deficiency. The concern is to protect patients and so to ensure, in serious cases by means of suspension and otherwise by means of conditions, that the doctor is prevented from practising unless his performance improves. Thus no charge is preferred and the criminal standard of proof is not required.
4. Unfortunately, as this case demonstrates, the purpose behind the enactment of section 36A has not been entirely achieved. This is partly due to the system which has been set up and the drafting of the provisions, which were given an altogether too literal construction by the Privy Council in Krippendorf v GMC [2001] Lloyds Law Reports Medical 8. The provisions have been amended since, but this case does not benefit from the amendments. Thus, what Parliament clearly intended was an assessment of the doctor's present performance, and so competence, based upon serious deficiencies disclosed by what he had done and what he was doing. If on the whole of the material place before it, the CPP was satisfied on the balance of probabilities that his professional performance was seriously deficient, then it had to order either suspension or conditions. On that approach it should have been possible to find that past performance did show that there was a serious deficiency in a particular respect but that the doctor had taken all necessary steps to remedy it, and so no finding of serious deficiency was appropriate. The Privy Council's construction of the statutory provisions in Krippendorf made that very difficult to achieve.
5. Before going further I should set out the relevant statutory provisions and the construction placed by the court upon them. Section 36A(1) provides:

"Where the standard of professional performance of a fully registered person is found by the Committee on Professional Performance to have been seriously deficient, the Committee shall direct --

(a) 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

(b) that his registration shall be conditional on his compliance, during such period not exceeding three years as may be specified in the direction, with the requirements so specified."

There is an appeal against a finding by the CPP under section 40(1)(aa) which provides:

"The following decisions are appealable decisions for the purposes of this section, that is to say --

(aa) a decision of the Committee on Professional Performance under section 36A above, giving a direction for suspension or for conditional registration or varying the conditions imposed by a direction for conditional registration."

That appeal, until an amendment in 2003, was limited to law. It is now an appeal at large. It is to be noted that suspension or the imposition of conditions is mandatory following a finding of seriously deficient professional performance.

6. One then turns to Schedule 4 which deals with the power to provide for regulations in relation to the various committees of the GMC. It is not, I think, necessary to refer specifically to any other than 5A which provides:

"The General Council may make rules --

(a) authorising the giving of directions by any of --

(i) the Assessment Referral Committee,

(ii) the Committee on Professional Performance,

(iii) such other persons as may be specified in the rules requiring an assessment of the standard of a registered person's professional performance to be carried out;

(b) specifying circumstances in which such an assessment may be carried out otherwise than in accordance with a direction."

There are various powers in relation to appeals and procedure in connection with that. As I say, for the purposes of this case I do not think I need go into Schedule 4 further.

7. The rules which govern are the GMC (Professional Performance) Rules Order of Council 1997 as amended. It is necessary to refer to some of those provisions. 2A deals with referral to the Interim Orders Committee and it provides that if it appears to anyone at any stage in the procedural ladder that has to be followed, that the circumstances are such that the Interim Orders Committee may wish to make an interim suspension order or an order for interim condition registration, the person or Committee considering the case shall refer the case to the Interim Orders Committee. I only mention that because there was such a referral at one stage in the process, but the Interim Orders Committee declined to make any order. That is something which in due course was relied on by Dr Wilson as a pointer, in his submission, in the direction that this was really not a finding which was justified on the material which was put before the CPP.
8. Rule 5 deals with the screening process. That is the first stage that any complaint that is put before the GMC has initially to be considered by an individual called a medical screener. Essentially, he has to decide whether, looking at it effectively at face value, there is something in it that needs to be followed up or there is absolutely nothing in it and it should be disposed of at the preliminary stage. The Rules provide that he will take no action unless the complaint or information suggests to the medical screener that the standard of the practitioner's professional performance may have been seriously deficient and it is appropriate to take action.
9. Rule 6 is the rule which requires that there may be an assessment at that early stage, and there are requirements that the Registrar notify the practitioner of the complaint and provide him with copies of it and any information about or observations on the case received in response to enquiries made by the screener, a copy of the rules and a statement prepared by the medical screener of the reasons why an assessment needs to be carried out. In fact, the screening process resulted, in this case, in a reference to the Assessment Referral Committee. That was because Dr Wilson, then acting on advice from the NBU and solicitors instructed on his behalf through the NBU, declined to submit himself to an assessment which was not directed.
10. One then goes on to Rule 8 in Part 3 which deals with assessment and indicates how the Assessment Panel should be constituted. It must contain a lead assessor who must be a doctor, at least one other doctor and one lay person, none of whom can be members of the Council. There are various other detailed provisions which I do not need specifically to refer to.
11. One then goes on to rule 11 which is headed "Procedure of Panels" and provides that:

"In carrying out an assessment, an Assessment Panel shall, subject to guidance given by the Council in relation to the carrying out of an assessment, adopt such procedures as appear to them to be necessary, having regard to the nature of the practitioner's work to assess the standard of his professional forms and in particular they shall --

(a) ask the doctor for a description in writing of his practice,

(b) at the beginning of the assessment consider the papers of the case and decide the way the assessment is to proceed,

(c) interview the practitioner,

(d) interview the complainant if he agrees to be interviewed,

(e) meet together during the course of the assessment to review the progress of the assessment,

(f) send to or show the practitioner any written information or opinion received by the Assessment Panel which in the opinion of the Panel may influence their assessment of the standard of his professional performance and affording reasonable opportunity of commenting on it,

(g) visit the practitioner at least once in his place of work, if he has a place of work, and give him reasonable notice of such visits,

(h) [deals with inspection of a sample of his practice records],

(i) [they must meet together to consider the conclusions that were reached in the content of the report of the Panel].

11(2) enables them to seek advice or information from any person who might, in the opinion of the Panel, assist them in carrying out an assessment.

12. In this case the assessment report took a very long time and in September 2001 solicitors then acting for the appellant suggested resolution by means of what was called a statement of requirements. That is to say, that the way ahead should avoid any formal hearing but should effectively take on board what the Assessment Panel indicated and the doctor would then agree to carry out certain procedures which would meet the concerns of the assessment report. The rules which were in play were Rules 17 and 18, and they deal with statements of requirements.
13. So it was that in November of 2001 some re-training was in due course agreed. The letter from the GMC which is dated 16th October 2001 and which dealt with the assessment and what might happen, said, so far as material, that the case co-ordinator was concerned by the information in the report which drew attention to certain deficiencies in the standard of Dr Wilson's professional performance and had carefully considered whether there should be a reference to the Committee on Professional Performance. He decided it was not necessary to do so, provided that he was willing to agree to a statement of requirements which was proposed. I say that agreement to submit to those, on advice from the solicitors, was forthcoming.
14. One of the matters involved (and this is, as I understand it, standard practice) was the service of what is described as a portfolio, a very substantial document, requiring a lot of information to be given by the practitioner, some of which, frankly, would appear on the face of not to be in the least material to individual cases. It is a global document. It seems that Dr Wilson decided that he really was not prepared to go along that route. He was concerned that the assessment report reached conclusions with which he profoundly disagreed, and he felt that he had agreed to undertake the requirements set out on advice with a view to avoiding the submission to the CPP and no doubt, also, because time had passed and he wanted to see an end as soon as possible to the process and get on with his professional life. However, it did not work out that way and in the end -- and in my judgment it is difficult to criticise him for this -- he decided that he would not be prepared to continue along that particular route.
15. So it was that Rule 25 came into play which provides at 25(1)(b) as follows:

"Where at any stage in the consideration of a case after an assessment has been carried out, the case co-ordinator is of the opinion . . . .

(b) the practitioner is --

(i) failing to comply with the requirements set out in the statement of requirements,

he shall refer the case to the Committee on Professional Performance together with a statement of his opinion and the reasons for it."

16. So it was that the matter was referred to the CPP. Schedules 1 and 3 to the Rules set out the procedures that have to be applied. It is unfortunately the case that some of the paragraphs in the Schedules are not particularly well-matched, or indeed well-drafted. They have given rise to some problems in connection with this case. Schedule 1 deals with general provisions for the relevant committees, which are in this case the Assessment Referral Committee and the CPP. I do not need to refer to by any means all these paragraphs but some are of importance.
17. Paragraph 8 enables the Committee to have specialist advisors and there was such a specialist advisor at the CPP. Paragraph 9 deals with evidence. It provides, so far as material, as follows:

"(1) Before any meeting of a Committee (other than a meeting that has been adjourned) the Registrar shall send to members of the Committee and to the specialist advisor copies of the notice of referral, the documents sent to the practitioner under Rule 6 where an assessment of the practitioner's performance has been carried out under these rules, the report of that assessment, any observations in writing submitted by or on behalf of the practitioner in connection with this case, and any other correspondence with the practitioner.

(2) The Committee may receive oral, documentary or other evidence of any fact or matter which appears to be relevant to the enquiry into the case before them but may consider the standard of the practitioner's professional performance on the basis of reports, written statements and other documents sent to members of the Committee under subparagraph (1).

(3) The Committee may, of their own motion, obtain any information in writing or call any person to give oral evidence in either case which they consider might be able to assist them in carrying out their functions."

Thus they have very wide powers to consider, any material that they believe to be relevant. The documents that are sent to the practitioner under Rule 6 I have already touched on and indicated what those were. It is said that Rule 9(3) also points in, I would put it this way, an inquisitorial direction. That, on the face of it seems to be so.

18. One then turns to Schedule 3 which deals with the procedure before the CPP specifically. Paragraph 8 provides:

"Where the Committee are to hold a performance hearing, the notice of referral shall, in addition to the matters specified in paragraph 3 of Schedule 1 --

(a) inform the practitioner if the solicitor proposes to call the author of a report, written statement or other document referred to in paragraph 3(3)(b) of Schedule 1 to give oral evidence at the hearing [that effectively is a reference back to paragraph 9];

(b) invite the practitioner to notify the Registrar, within the period of 14 days of being sent the notice of referral, whether he wishes the author of any such report, written statement or other document to give oral evidence at the hearing;

(c) inform the practitioner under which provision of these Rules the reference has been made;

(d) invite the practitioner to submit to the Registrar, within the period ending 14 days before the date specified for the hearing in the notice of referral, any further written observations which he may wish the Committee to consider.

(2) Where the practitioner has stated that he wishes the author of any report, written statement or other document referred to in paragraph 3(3)(b) of Schedule 1 to give oral evidence at the hearing, the Registrar shall arrange for the author to attend the hearing.

(3) In relation to the report of an Assessment Panel, the lead assessor shall be treated as the author of the report [then there is a proviso for when the lead assessor is not available]."

19. Paragraph 9 deals with witnesses and evidence at the hearing and, so far as material, provides:

"(1) In any proceedings before the Committee, the solicitor and the practitioner may call witnesses and may put questions to any person called as a witness.

(2) Members of the Committee, the legal assessor and the specialist advisor may put questions to any person called as a witness and to the practitioner and the complainant.

(3) Where the practitioner has stated that he wishes the author of any report, statement or other document to give oral evidence at the hearing, that report, statement or other document shall only be presented to the Committee if its author is called as a witness.

(4) If the practitioner indicates at the hearing that he wishes the author of any document presented to the Committee by the solicitor to be called to give oral evidence then, notwithstanding that he has not stated that he wishes the author to be present at the hearing under paragraph 8(1)(b), the Committee shall consult the legal assessor as to whether, in the interests of justice, they should adjourn the hearing in order to permit the evidence to be given or whether they should proceed with the hearing on the basis of the documents before them.

(5) The Committee may, at any stage in their proceedings --

(a) with the consent of the practitioner, or

(b) where, after consultation with the legal assessor, they are satisfied that its reception is desirable to enable them to perform their duty,

allow the solicitor to produce at the hearing any written evidence, notwithstanding that a copy has not been given to the practitioner before the hearing or that its author is not being called as a witness."

20. Paragraph 10 deals with the procedure at the hearing. I need not go through it, save to point out that it nowhere provides for a submission of no case, as it were, which conduct proceedings do provide for, and that emphasises the point made by Miss Norton that this is not to be regarded as the equivalent of a conduct hearing in the sense that there is no charge and no finding on a charge. That is also underlined by the absence of a provision for the solicitor; that is to say, the representative of the GMC and the claimant to address the Committee at the conclusion of the evidence.
21. These statutory provisions have been considered, as I have said, by the Privy Council in Krippendorf v GMC [2001] Lloyds Law Reports Medical 8. On page 10 of the report Sir Christopher Slade, giving the judgment of the Privy Council, said this:

"Their Lordships make two preliminary observations on the effect of section 36A. First, while the section could have been drafted so as to require a test of the practitioner's professional competence, that is not the test which the legislature has chosen. The opening words of section 36A(1) make it clear that it is the standard of the past professional performance of the practitioner in the work which he has actually been doing to which the CPP must direct its attention. Secondly, neither the 1983 Act nor the Rules made thereunder contain any definition of 'seriously deficient performance'. In a booklet published in November 1997 and entitled 'When your Professional Performance is Questioned', the Council indicated the interpretation of the phrase which it intended to adopt, as follows --

'Seriously deficient performance' is a new idea. We have defined it as 'a departure from good professional practice, whether or not it is covered by specific GMC guidance, sufficiently serious to call into question a doctor's registration'. This means that we will question your registration if we believe that you are, repeatedly or persistently, not meeting the professional standards appropriate to the work you are doing -- especially if you might be putting patients at risk. This could include failure to follow the guidance in our booklet Good Medical Practice.'

In view of the use of the past tense in section 36A, the words 'have been' would be more appropriate than the word 'are' in both places where it appears in the third sentence of this passage. With this qualification, their Lordships see no reason to criticise the general guidance thus given in the booklet, provided that it is not regarded as exhaustive."

Then at page 14, having referred to the assessment report, Sir Christopher said this:

"The Report was long and careful. In their Lordships' opinion, however, it demonstrates a basic error in law in the Panel's approach to their functions. The duty imposed by rule 11(1) on the Panel in carrying out an assessment is the duty 'to adopt such procedures as appear to them to be necessary, having regard to the nature of the practitioner's work to assess the standard of his professional performance . . . ' [not his professional competence]. This reflects the wording of section 36A of the 1983 Act which, as has already been pointed out, shows that it is the past professional performance, not the professional competence, of the practitioner in the work which he has actually been doing to which the CPP (and likewise the Panel) must direct their attention. (Though paragraph 10 of Schedule 3 of the Rules, which sets out the procedure at performance hearings, twice uses the phrase 'whether the standard of [his] [the practitioner's] professional performance is seriously deficient', it is common ground that the 1983 Act itself, with its reference to the past tense, must take precedence)."

22. The decision in Krippendorf was on the 24th November 2000 but although the Assessment Panel did not reach a conclusion until well into 2001, it appeared from the evidence given by the lead member that they had not perhaps taken fully on board the implications of Krippendorf at the time that they were considering the matter and reaching their conclusions.

23. Krippendorf was considered, and to an extent explained, in Sadler v GMC [2003] UKPC 59. In paragraph 17, the judgment being given by Lord Walker of Gestingthorpe, this was said:

"The Board's decision in Krippendorf was given on 24th November 2000, that is soon after the present case was referred to the CPP for a performance hearing. The Assessment Panel's report on the appellant had therefore (as described below) been prepared without the benefit of the Board's guidance in Krippendorf, and that guidance had a very important effect on the advice which the legal assessor gave to the CPP in this case. It was not suggested that their Lordships should depart from Krippendorf (with the exception of what seems to have been no more than a passing reference to the standard of proof, to which it will be necessary to return). But without casting any doubt on the decision their Lordships feel that the distinction between competence and performance, drawn in Krippendorf, should not be taken too far. It is important that any Assessment Panel should have proper regard to the complaint or other information which originally set the assessment in motion. But in most cases there is an obvious correlation between competence and performance. Moreover the Assessment Panel is concerned, not only with assessing past professional performance, but also with what needs to be done to improve a practitioner's performance, both in the public interest and in the practitioner's own best interests. Rules 13(2)(b), 18(1) and 25(1)(b) all reflect (in different ways) the very important remedial element in the procedure laid down in the Rules. The purpose of assessment is not to punish a practitioner whose standards of professional performance have been seriously defective, but to improve those standards, if possible, by a process of supervision and retraining, for the protection and benefit of the public. The process of assessment must include forming a view as to the standard of past performance, but if it is to achieve its objectives the process must not be restricted to that sort of backward-looking exercise."

23. At paragraph 62, Lord Walker was considering the public guidance on what amounted to seriously deficient performance and this was said:

"Although in Krippendorf the Board did not criticise the phrase 'repeatedly or persistently' in the GMC's guidance, it is important to bear in mind that guidance is a generalisation seeking to cover a very wide range of professional performance. The professional demands made on a general practitioner are very different from those made on a consultant surgeon. A continuing failure to organise the efficient management of a general practice may (in a sufficiently bad case) amount to seriously deficient performance, but in the nature of things it must be assessed on very different evidence from that relating to shortcomings of technique in major surgery. It would plainly be contrary to the public interest if a sub-standard surgeon could not be dealt with by the CPP unless and until he had repeatedly made the same error in the course of similar operations. But as a general rule the GMC should not (and their Lordships have no reason to suppose they would) seek to aggregate a number of totally dissimilar incidents and alleged shortcomings in order to make out a case of seriously deficient performance against any practitioner.

(63) At some points in his submissions Mr Hendy referred to tortious liability for negligence, suggesting that seriously deficient performance must be at least as serious as negligence. Their Lordships do not consider negligence to be a relevant or useful concept at a performance hearing before the CPP. Negligence is concerned with compensating loss proved to have been caused by a breach of a practitioner's duty of care. Seriously deficient performance is a much wider concept since (as already mentioned) it can extend to such matters as poor record-keeping, poor maintenance of professional obligations of confidentiality, or even deficiencies (if serious and persistent) in consideration and courtesy towards patients. It does not depend on proof of causation of actionable loss. (On the other hand one isolated error of judgment by a surgeon might give rise to liability in negligence but would be unlikely, unless very serious indeed, to amount by itself to seriously deficient performance.)"

Finally, I should refer to paragraphs 73 and 74 which deal with the standard of proof where this is said:

"The function of the CPP is not penal. It is to protect the public and to rehabilitate (if possible) practitioners whose professional standards have fallen too low. In the first of its tasks (that is deciding whether the standard of a practitioner's performance has been seriously deficient) the CPP has to ascertain the primary facts (which in many cases may not be seriously in doubt) and then to exercise their judgment (in the case of some but not all the members of the CPP, their professional judgment as experienced doctors). In this exercise the standard of proof of the primary facts ought not, in the generality of cases, to be an issue which gives rise to much difficulty. So far as it is a material issue the standard should in their Lordships' view, in the generality of cases, be the ordinary civil standard of proof. There may be exceptional cases (probably cases in which the practitioner is fortunate to be facing the CPP rather than the Professional Conduct Committee) in which a heightened civil standard might be appropriate, as explained by the House of Lords in Re H (minors)(sexual abuse: standard of proof) [1996] AC 563.

(74) Their Lordships do not think it prudent to try to go further in giving guidance, except to echo what was said by the Board in McAllister v General Medical Council [1993] AC 388, 399:

'In charges brought against a doctor where the events giving rise to the charges would also found serious criminal charges it may be appropriate that the onus and standard of proof should be those applicable to a criminal trial. However, there will be many cases, where the charges which a doctor has to face before the Committee could not be the subject of serious or any criminal charges at all. The Committee is composed entirely of medical men and women learned in their profession and to require that every charge of professional misconduct has to be proved to them just as though they were a jury of laymen is, in their Lordships' view, neither necessary nor desirable. What is of prime importance is that the charge and the conduct of proceedings should be fair to the doctor in question in all respects.'.

That passage is not wholly apposite to a Committee which must now have at least one lay member. But subject to that qualification, the passage applies still more strongly to a hearing before the CPP than to a hearing before the Professional Conduct Committee."

24. Unfortunately, the appellant was not represented before the CPP. The case was originally listed for three days in February 2003; already, I am bound to say, far too long ago. By letter of 8th March 2003 from Dr Wilson to the senior assessment coordinator at the GMC, a request was made for a number of witnesses to be available for cross-examination. That covered some 23 different witnesses. Dr Wilson said in that letter:

"After I left Cyprus and by the time the complaint was made to the GMC, I was acting satisfactorily as a local consultant at various hospitals while the MOD were considering the grievance that I had raised within the organisation. This grievance that I had initially raised months before with the hospitals here included the very matters which these military colleagues, who were concerned with the incident of 14th November 1998, were falsifying their subsequent complaint to the GMC. The MOD never returned my grievance nor completed the process. Wing Commander McLoughlin was subsequently moved from Cyprus, and Lieutenant Colonel Saggar effectively sacked from Cyprus, even complaining on national television of the injustice in Cyprus. He failed in an action against them for racial prejudice on legal grounds."

I pause there to note that very recently, I think a matter of two or three weeks ago, the Court of Appeal allowed Lt Colonel Saggar's appeal against the decision by the Employment Tribunal that it had no jurisdiction. Thus his complaint is now to be considered on its merits. The complaint in question is, as I understand it, essentially one of alleged racial discrimination against him in his employment in Cyprus. The letter continues:

"The Assessment Panel imposed deliberately wide-ranging, onerous and unnecessary conditions and had no justification in evidence of my performance, and were not necessary. These numerous conditions required my trainer to consider I was virtually restarting my training from scratch. Persuaded to sign up for this regime, I had been given the impression, as had the trainer, that the final reassessment would be formal and in the trainer's hands. Although I reluctantly agreed to this retraining, and even attended at my own expense, it was made clear to me that these conditions and the fact that the application had not been dealt with would both be fatal to my future professional career. However, during the short break I was then given notice of a further full GMC assessment. I have no confidence in any GMC assessment being impartial or fair . . . and despite all my efforts to retrain to date, I would never be allowed by a co-ordinator to return to full consulting practice. I consistently and rightfully maintain that my professional performance has never been deficient, let alone seriously, at the time the complaint was originally made. No patient has ever suffered because of my actions and therefore I will vigorously defend myself to the CPP on the false and malicious allegations made by these military personnel before re-embarking on my career."

25. The reply to that letter made the point that persons listed in Dr Wilson's letter who were not authors of reports, written statements or other documents within the meaning of paragraph 9 of Schedule 3, would not be called by the GMC because a person did not become the author of a document by virtue of having been interviewed by the GMC. Nonetheless, it became apparent that three days was wholly insufficient and so the case was refixed for 23rd June 2003 with an estimate of three weeks. Although the appellant was unrepresented he had managed to come to an arrangement whereby he could be advised by Mr Steven Gee QC. This was a special arrangement that was made with the Bar Council.
26. The proceedings, as I have already indicated, took no less than 41 days and were spread over a substantial period of time and did not conclude until October 2004. Fifteen days were spent from between the middle of June until the middle of July. In October 2003 there was an application to stay the proceedings, based largely upon arguments which had been put to Dr Wilson by Mr Gee. There were difficulties, perhaps understandably, in providing for dates when adjournments had to take place because time ran out, because it was necessary to find dates on which all the members of the Committee were available. In due course the matter was refixed for January 2004. There was then an application for an adjournment based largely on Dr Wilson being ill. Two applications were made by two different counsel then acting on his behalf, and an attempt was made to judicially review the decision of the Committee not to grant an adjournment. As it happened, that initially came before me on the papers and I refused it. I have not seen what I said then but, judging by comments made on an oral renewal, I had been somewhat robust in my rejection of that particular application. In fact, permission was refused on an oral renewal.
27. There were further days of hearing at the end of March and at the end of July. In September the appellant indicated that he would no longer be participating in the proceedings. At page 64 of day 33, Dr Wilson said:

"I am just saying that I am sorry that I cannot continue these proceedings. My cross-examinations, especially of the military witnesses and the witnesses married to the military, are fairly incapable of getting the truth behind the matter. The longer I continue the worse it gets, no doubt for you the Committee as well as for me. I think I have shown clearly, for example, in evidence of Dr Clark and Professor Aitkenhead, that the allegations against me of serious deficiency in professional performance are unfounded and are clearly unfounded on all but the most incompetent assessment."

He then went on to complain that the Assessment Panel had not done a competent job and that he really could not continue, and he said:

"I have to leave it to you and your consciences to come to the right decision in due course. I want a decision on this case. I will co-operate whatever way you want. I want a decision, I want the transcripts and I want to appeal if the case goes against me."

In fact, he did attend to cross-examine one further witness but otherwise took no active part in the proceedings thereafter.

28. It was no doubt difficult for the Chairman but, in my judgment, it really was necessary for him to have taken control of the proceedings and ensured that the cross-examination was kept to a reasonable level. I appreciate that it was enormously difficult for the appellant. His future capacity to earn a living was at stake. He was, and he remains, convinced that he had been the victim and that the standard of his professional performance had not been in any way deficient, let alone seriously deficient. He now recognises that he may have been more prickly than he should have been at times and that he had on occasions reacted in a way which could properly be the subject of criticism. He recognises too that a failure to get on with colleagues and to operate within a team can put patients at risk, but in his case things never reached that pitch and there is an express finding that he did not in fact put any patients at risk by any of his actions, which were considered in the course of these proceedings.
29. Miss Norton has, as I have indicated, submitted that performance proceedings are essentially an enquiry by the CPP into past performance and in that sense are inquisitorial and the doctor is not on trial. The difficulty with that is that the doctor will inevitably feel that he is on trial where there is, as here, a real issue as to the validity of the complaints made against him relating to his past performance. The CPP will, in such cases, be bound to decide what were the facts relating to the incidents relied upon and whether or not, on the facts that they find, a serious deficiency is established. While there is no formal charge, the doctor must be entitled to particulars of those matters relied on to establish serious deficiency.
30. It seems to me that paragraph 9 of Schedule 3 to the Rules is not entirely consistent with an inquisitorial approach. It recognises that the practitioner must be able to challenge the matters relied on against him, and so to be able to put his case to those who can establish those matters. If any cannot be called, their evidence drops out of the case subject to paragraph 9(5)(b). This suggests a much more adversarial approach and it recognises that there may be substantial issues to be tried before the Committee can be satisfied, albeit to the civil standard, that the practitioner's past performance was seriously deficient. The power of the Committee under paragraph 9 of Schedule 1 to receive any relevant material and to obtain any relevant information must be subject to the requirements of paragraph 9 of Schedule 3 which deals specifically with evidence of witnesses at the hearing. Paragraph 9 of Schedule 1 is concerned with the general powers of the two Committees -- the ARC and the CPP -- covered by the Rules.
31. The obligation to give particulars of the matters relied on carries with it an obligation to disclose all relevant material to the practitioner. In this regard, I can see no difference in principle between what is required for a conduct case and what is required for a performance case. In both the practitioner's registration, and so his ability to earn his living, is at stake, albeit to an obviously greater extent in conduct as opposed to performance cases. He must be able to know what is being alleged against him and be given all relevant material to enable him to mount a proper defence. I use the word "defence" advisedly because the practitioner is facing allegations which he contends are unfounded.
32. There is an obvious difficulty created by paragraph 9(3) of Schedule 1. In making the assessment report, reliance will have been placed on interviews with various people whose evidence is material to the issues. The report of what was said by a third party is not a statement by that party, nor a document of which he is the author. But it would be strange if the embargo on using a statement or document of which an individual who has not been called is the author, can be avoided by putting in a report of what that individual said. However, I recognise that an Assessment Panel report will inevitably refer to all the material before it, and that may include statements from persons who are not called. For reasons which will become apparent, I do not need to resolve this problem in order to reach my decision in this case, but it is, it seems to me, a real potential difficulty.
33. The process was triggered by a letter to the Fitness to Practice section of the GMC of 19th July 1999 from Group Captain Jones, the Hospital Commander of TPMH. That letter, so far as I need quote it, reads as follows:

"Dr Peter Wilson has been employed as a Consultant Anaesthetist at the Princess Mary's Hospital, Royal Air Force, Akrotiri since August 1998. His practice and behaviour here have been a cause for concern since he arrived. Matters have now reached the stage where I, and several of my consultants, feel that he is a danger to the patients and to himself. Procedures are in hand to remove him from his post, but these have been subject to bureaucratic delays.

This hospital serves a population of some 10,000 British service personnel and their dependents in Cyprus. It is 2,000 miles from the UK and therefore geographically isolated from tertiary care although specialist facilities in the Republic of Cyprus can be used. The service provided is consultant based; only one of the 12 doctors employed is a trainees. This means that a higher degree of professional cooperation is required than in some UK hospitals and that consultants have to carry out routine tasks which might normally be delegated to more junior doctors. This cooperation extends to the nursing staff and to the professions allied to medicine who will often call the consultants directly if they have concerns over patient management. Much of the clinical workload is mundane for anaesthetists. Most cases are straightforward anaesthetics for relatively minor elective procedures in fit adults. More serious problems can arise as emergencies, which is why we require an element of trust to exist between the anaesthetic department and other specialities in the hospital. It will become obvious that there has been a total breakdown of trust between Dr Wilson and his colleagues.

Dr Wilson visited the hospital as a locum in the past, when his performance on short acquaintance appeared satisfactory. He was therefore fully aware of the situation when he accepted the substantive post. Soon after his arrival, a number of clinical incidents began to occur."

He then sets out some five such incidents which were, in due course, going to be relied on and concluded thus:

"Dr Wilson's poor time-keeping, non-response to urgent radio pager messages, non-compliance with established hospital procedures, antagonism to staff and patients alike, have all been well documented, as has his didactic approach to colleagues of all disciplines, cindluding his own. There has been a total breakdown of trust between Dr Wilson and numerous members of staff in this hospital. Far be it for me to pontificate further, but this breakdown has not only involved fellow doctors but has spread into the nursing and the PAM cadres as well. It would be remiss of me, nay negligent, not to bring these matters to your notice."

34. There were various enclosures. It is to be noted, for example, that Dr Wilson had himself expressed concerns about a failure to cooperate by colleagues. There was, a letter dated 24th February 1999 addressed to Lieutenant Colonel Saggar which reads:

"Dear Surinder,

It is with great sadness that I have to say that at yesterday's departmental meeting I found you were unwilling to cooperate with me and that you made no attempt to build bridges or foster teamwork. I found your aggressive and bullying attitude most uncomfortable, bordering on personal harassment since it was obviously not aimed at Heather [that is Miss McLoughlin who was a fellow consultant anaesthetist]. Although I had previously suggested the use of the tape in our meetings, I found the immediate production of one without discussion with me to be very intimidating and singularly failed to set a correct tone to the 'new start' contrary to our new CO's obvious wishes. I found the whole experience difficult and the opposite of what had been intended and I wish you to be fully aware of my feelings now."

35. There was a further letter from Brigadier Houghton of 17th September 1999 which essentially repeated and gave perhaps rather more details in relation to specific incidents leading to complaints against Dr Wilson. What he said was that because of doubts concerning Dr Wilson's performance, he had been asked to visit the hospital and advise on Dr Wilson's performance. He had prepared a report from personal interviews, signed statements and documentary evidence which concluded that there were grounds for concern regarding Dr Wilson's performance. He was concerned that he might be unfit to practise, and he was submitting his report as he believed that patient safety might be compromised if Dr Wilson was permitted to continue in practice. He then set out a considerable number of specific allegations and dates on which the matters arose.
36. Many of the matters, the subject of these complaints, depended upon reports or allegations made by two of Dr Wilson's colleagues; that is to say Lieutenant Colonel Saggar and Wing Commander McLoughlin. There was undoubtedly more general concern about the appellant's performance, but he had himself had occasion to complain and found it necessary to seek advice from the BMA. There can be no doubt that the situation in the anaesthetic department at the hospital was, to say the least, unhappy. Colleagues did not get on with each other and Lieutenant Colonel Saggar has, as I have indicated, pursued a claim for racial discrimination which the Court of Appeal has very recently allowed to proceed. He and Wing Commander McLoughlin did not get on together and she created her own problems which may well have reflected her position. There is a letter from Lieutenant Colonel Saggar of 23rd September 1999 to Group Captain Jones, referring to an incident relating to Wing Commander McLoughlin and saying this:

"I find the above incident of grave concern. [Wing Commander] McLoughlin not only behaved in a grossly irresponsible manner but also is in complete breach of all hospital policy protocols. I have persistently drawn the attention of your office to her neglect of duties and blatant disregard for patient safety and care. She is either immune to all disciplinary procedures or none are conducted."

37. She did not attend the hearing before the CPP and the reason for that was because she was unwell. On 20th June 2003 there was a letter from her general practitioner confirming that she had a stress-related illness, for which she was still receiving counselling, due to events and circumstances that happened when she was serving Wing Commander in the RAF in Cyprus and a consultant anaesthetist. It said that she found herself in extremely stressful situations which then proceeded to leave her doing the job of two consultant posts with only occasional help from locums, and so both her psychological and physical health deteriorated. It was said that having to attend to give evidence in this case and to be forced to work through all of the events again would be a significant setback. She was therefore considered medically unfit to attend.
38. Thus, although she was clearly a key player, her account was neither given nor tested. It is apparent that a major source of difficulty lay in the appellant being the only civilian among military colleagues. Senior officers would dictate and what they said would normally be obeyed without question. Thus we find Lieutenant Colonel Saggar saying in evidence:

"I did not like some of the decisions which Group Captain Dougherty used to take, but being a senior officer there was no way I could challenge him or question him. It is totally different in the services than it is in the civilian way -- in civvy street."

39. If the appellant felt the patients might be at risk it was necessary to discuss. It is unfortunately clear that he did not always carry out those discussions in a tactful or sensitive fashion and that from time to time he displayed a lack of flexibility when dealing with a difficult situation. Lieutenant Colonel Saggar described an occasion when Group Captain Dougherty was thumping the table and the appellant was shouting at him. Lieutenant Colonel Saggar's view was that the appellant was responsible for this. He put it thus in answering a question why he thought the Group Captain was thumping the table:

"Because you keep repeating yourself time after time and time and then you would say, 'Alright, alright', and he did not like that thing. He said 'Once I have told you this it is finished, Dr Wilson, that is how it will be done'."

This episode was in connection with the 14th November incident to which I will come in due course.

40. On 18th February 2000 the appellant, through his then solicitors, sent detailed comments on the allegations which had been disclosed to him. They pointed out that no complaint had been made by the appellant's employers who considered the matters raised against him. Indeed, his appraisal report had given him an overall marking of 5. That had been upgraded to 4. It is not by any means a clean bill of health but it was not consistent with the complaints which had been made.
41. The upgrade came from Major General Callow who was the Chief Executive concerned with matters at the Ministry of Defence. What he said, and it is worth citing, was this:

"There were a number of principal issues that emerged during the interview [that is an interview which took place in December 1999], they included:

(a) Your belief that all the problems stemmed from the incident of 14th November. I cannot accept this because your inability to 'fit in' was evident almost from the start. Group Captain Dougherty wrote to you on 11th November regarding your behaviour and you have already been spoken to about the manner in which you challenged the competence of others.

(b) Your statement that there was no anaesthetic team to be a member of. This may well have been true latterly but was not when you arrived. I accept that relationships between the uniformed anaesthetists at TPMH did deteriorate during your time there but it seems that you may have played a part in this.

(c) You frequently alluded to being in the dark about allegations made about you yet, with the exception of the referral to the General Medical Council (it is the GMC that must release this to you), you were offered access to all relevant reports.

(d) You stated that you had particular difficulty in integrating into the military environment and that it would have been difficult for any civilian to do so. You clearly had difficulty but I must point out that many civilian consultants have worked at TPMH and have fitted in well. None seem to have had the problems that you allude to.

(e) You claimed to have been unfairly treated in that you were worked harder than the uniformed staff. Scrutiny of duty rosters showed that you were on duty half a day more than Wing Commander McLoughlin during the period August 1998 to May 1999. The reason that Lieutenant Colonel Saggar was away more was fully explained at the time.

(f) You specifically challenged the adverse comments made about your time-keeping. I have reviewed the records available to me and find that there were 11 incidents between 4th August and 9th December 1998 when you were either late for a list or a patient, failed to attend for duty or could not be found on hospital premises. This is sufficient, in my view, to substantiate the adverse comments made in your PAR.

Despite the above, I am prepared to accept that it would not have been easy for you to fit in at TPMH, and that a situation developed that made being a team member difficult. I accept that some of this was out of your control but also believe that the manner in which you conducted yourself contributed to the unhappy situation. On fuller reflection, I have decided that the overall performance mark should be up-rated to 4."

42. It is also worth pointing out that an earlier probation report had not indicated that there were any serious defects, save that in working with people it was said that he had found it difficult to work as a member of a team. He had had several disputes with colleagues in departments and public disagreements with professionals in other clinical areas. Although he by no means got full marks, as it were, it was not suggested in the probation report that his competence was in issue. His comments of 1st February 1999 said this:

"This report implies that I am having problems with colleagues. However, when I came to the department there was no effective management and there were existing problems. Although Wing Commander McLoughlin had had problems with previous colleagues, I now have a good working relationship with her. The serious deterioration in the departmental situation occurred after the arrival of Lieutenant Colonel Saggar in September. Lieutenant Colonel Saggar immediately involved Group Captain Dougherty (CO), the Army Solicitor, and I in his serious and many disputes with Wing Commander McLoughlin.

I myself have complained about harassment from him and his unprofessional and personal attitudes towards me that are still not being dealt with. These problems have been recently aggravated because it appears that without discussion with me he has been appointed to the position of Senior Consultant and my Line Manager. He has been unable to organise the department either impartially or fairly.

The oral warning was given to me before I had been given the opportunity to give a statement about an incident during which I was expected to put patient safety at risk against my professional judgment. A dispute arose within the theatre about the care of both a mother and a baby about which I have had to seek outside advice. In spite of my efforts to work harmoniously in the hospital, I am being seriously misrepresented and criticised in the record of that incident [that is a reference to 14th November 1998].

The involvement of 'outside' organisations is only because I cannot get a satisfactory resolution of these problems internally so far."

So it is clear that Dr Wilson was putting his own side of the matter and was concerned that things should be done to see whether the situation could be sorted out.

43. The appellant, who was at that time being advised by the MDU solicitors, declined to accept the suggestion of the screener that he should agree to a performance assessment. I should now turn to the assessment which of course is a really important document in the context of this case.
44. The assessment was carried out in two stages in January and March 2001. Dr Wilson was eventually served with a copy of the report in August of 2001. The lead assessor was a doctor Anna-Maria Rollin. She in due course gave evidence. Reference was made to five specific incidents which were those raised by Group Captain Jones in his original complaint, and it was said that the complaint was supported by a number of reports and statements by members of staff at TPMH. It was noted that Dr Wilson was specifically concerned that the Panel should have access to his anaesthetic records and he was also concerned to emphasise that, in his view, relationships between the other two members of the anaesthetic department had not been good and that that was part of the problem.
45. The Panel then set out the various headings and reached conclusions as to whether overall the performance of Dr Wilson was acceptable, gave cause for concern or was unacceptable. Only if a decision was made that a particular aspect was unacceptable could he qualify for a finding of serious professional misconduct, although it is common ground that if a finding of seriously deficient performance was made in respect of any particular heading then it would be appropriate to require in the conditions that consideration was given to any other heading where it was believed that there was cause for concern. That, as I say, is not in issue.
46. It is I think right that I should just run briefly through the different headings and indicate what the findings were. "Respect for patients' trust and confidentiality". The finding was that this was acceptable. I am going to indicate, so that the matter is clear, what the final decision of the CPP was in relation to these headings. That was agreed by the CPP. The conclusion was that, on balance, the Panel took the view that in all the circumstances Dr Wilson's manner with parents was acceptable, although he appears to have behaved inappropriately in the presence of patients and their relatives, this seemed to be an isolated incident when his stress levels were high.
47. "Communication with patients". The finding was acceptable and that was agreed by the Committee.
48. "Assessment of patients' condition" was found to give rise to cause for concern. The CPP decided that that was wrong and that assessment of patients' condition was acceptable. The same applies to "Providing or arranging treatment", a cause for concern finding by the Panel and a finding by the Committee that it was acceptable.
49. "Treatment in emergencies", again the Panel found cause for concern. The Committee did not agree and found that it was acceptable.
50. "Working within limits of competence", cause for concern by the Panel. Not agreed by the Committee and found to be acceptable.
51. His record-keeping gave rise to cause for concern according to the Panel. That was agreed by the Committee. It is noted that he had himself acknowledged that his record-keeping and note-taking could have been better. He does not dispute, and has never disputed, that he was perhaps not the best record-keeper; partly, I think, because his handwriting was worse than some. There is an indication that he has addressed that since and it is, in itself, of course, of possible considerable importance because the need for there to be a proper record is obvious when one is dealing with a patient and when others have to take over that patient's care. But that, as I have said, was cause for concern rather than unacceptability.
52. We then come to the key finding which was "Relationships with colleagues", being his team work. That was found by the Panel to be unacceptable. It was that which was upheld by the Committee. What the Panel said was this:

"The most disturbing aspect of this section of the assessment was the reported lack of ability to manage conflict with colleagues. Air Commodore Matthews reported that Dr Wilson would come to see him in his office if there were concerns or disagreements. However, others reported loss of temper and a complete breakdown in discussions with colleagues. Flight Sergeant McEwen [I think one of the nurses] said that he had to ask Dr Wilson to stop shouting and behave professionally. Lieutenant Colonel Saggar said that when required to discuss complaints, Dr Wilson became 'abusive'. Major MacMillan heard confrontations between the CO, the Head of Nursing and Dr Wilson, and a raised voice to Captain Hume. He himself felt physically threatened on one occasion. Mr Awad said that Dr Wilson responded to complaints 'with anger' and Flight Sergeant McEwen gave as his chief weakness 'anger management'.

Dr Wilson himself denied any such behaviour. When asked specifically how he dealt with frustration, he said that he entered into reasonable discussion, did not shout, and if necessary went off and wrote a letter. He felt that he was being unjustly accused, because he didn't suffer fools gladly. He said that he was not a team player if the team does not do the right thing by the patient and that he had never had a complaint from a patient.

It was clear that Dr Wilson had many strengths and had made good working relationships with many people. Despite this, the assessors felt that his team-working skills were unacceptable, on balance. The concerns were expressed by too many interviewees to be disregarded. In addition, many of them refer to 'anger' and 'shouting', and even physical threat. These are not usual behaviour patterns for doctors in a professional context, and we took them seriously."

53. The Panel then considered "Arranging cover, delegation and referral" and found that unacceptable. That was not accepted by the Committee which found that it was not only not unacceptable but indeed was acceptable. "Educational activities and constructive participation in audit assessment and appraisal" were both found by the Panel and by Committee to have given rise to a cause for concern. In relation to the participation in audit assessment and appraisal they say this:

"On balance we felt that Dr Wilson would be reasonably open to discussion of performance with those he regarded as his peers, but not necessarily with others. He emphasised time and time again that he was very keen to raise standards, but there is little objective evidence of this. This may have been due to circumstances beyond his control."

54. "Teaching and training" was regarded both by the Panel and the Committee as acceptable, and "Working within laws and regulations" gave rise, according to the Panel, to cause for concern but was regarded by the Committee as acceptable. The formal opinion of the Panel was as follows:

"The Panel has considered the following questions. In each case their answers set out the reasons for their opinion:

(a) Has the standard of the practitioner's professional performance been seriously deficient? The Panel has found the practitioner's professional performance to be seriously deficient in some aspects of his practice. In particular, it was concerned about his understanding and management of general and neo-natal resuscitation, and of anaesthesia in young children.

(b) Is the standard of the practitioner's professional performance likely to be improved by remedial action? The panel feels that the practitioner's professional performance is likely to be improved by remedial action. He has already taken some retraining and both the trainer and the Panel feel that improvement is possible. Should the practitioner limit his professional practice or cease professional practice, the Panel feels that the current standard of practice of the practitioner is not up to the standard expected of a consultant anaesthetist in the UK. He should accordingly spend a period of time working in a grade other than a consultant where he will be under appropriate consultant supervision. It would be helpful to identify a mentor who could work with the practitioner to develop a defined programme of re-training. There were specific concerns about the management of neo-nates and young children and it is recommended that the practitioner should not be involved in the care of these patients unless and until he has received formal training and passed a test of competence in PLS or APLS."

There is a line that is almost impossible to read but what they are effectively saying is that improvements in his skills and some aspects of team-working should be achievable within a finite period of time. No further action than that was required.

55. There followed correspondence and in the end Dr Wilson decided (as I have indicated in the extracts from the letter he wrote to the GMC before the hearing which led to the adjournment of the original date) that it was not appropriate that he should be required to continue with the re-training which had been suggested by the Panel.
56. As I have already said, the hearing lasted far too long. There is no doubt that the appellant contributed to that in two ways. First, his cross-examination went into far too much detail and he failed to focus on the points that mattered. I record that as a matter of fact, but not necessarily as a matter of great criticism. He was not, and did not purport to be, an accomplished cross-examiner. His future was at stake and he was naturally concerned with findings adverse to him that had already been made by the Assessment Panel. Accordingly, he had, he felt, to challenge in detail those who were giving evidence which he believed to be inaccurate against him.
57. Secondly, he was until March 2004 receiving advice from Stephen Gee. That advice was not always as helpful as it might have been since it encouraged him to believe that the whole process was unfair and that he would be put at a disadvantage. Arguments that the proceeding contravened Article 6 of the European Convention on Human Rights, that the Committee was biased that and further particulars should be given were fed to him by Mr Gee. He was not capable -- and again this is no criticism -- of presenting those arguments in a succinct manner or in identifying those which ought to be pursued and when they ought not to be pursued. No less than nine days were taken up with applications for their consideration, including applications to adjourn because of the appellant's ill-health. An attempt was made to prevent continuation in early 2004 through judicial review but that was misconceived and failed. But it was supported, as I understand it, by advice from Mr Gee.
58. There can be no doubt, and the transcript makes this clear, that the Committee Chairman and the legal assessor between them did all they could to ensure that the appellant was able to put his case and did have all disclosure and particulars to which he was entitled. It was at the legal assessor's suggestion that the particulars were in due course set out identifying the matters in issue, but that did not happen until January 2004. In truth, they had been indicated in the original complaints, the assessment report and counsel's opening, a copy of which were provided to Dr Wilson.
59. His concerns are set out in a letter of 16th January 2004 concerning evidence, unfairness, bias, lack of equality and so on. All these were very important issues, but they do indicate, regrettably, following advice from counsel, that he had, perhaps not surprisingly, let the proceedings cloud his better judgment. I can understand how the Committee must have become exasperated with the way in which he conducted his case. They may well have thought he was acting unreasonably.
60. On the 39th day of the hearing, the legal assessor gave advice to the Committee before they retired to consider their decision. The appellant was not present, but had received a copy of the advice which was to be given. I need not go through it since it is manifestly correct. The assessor warned the Committee specifically against relying on hearsay, and advised them that they must make allowances for the appellant, having regard to the strain under which he was no doubt acting. Having warned them about hearsay, he said this:

"In the particular circumstances of this case, I would ask you to be extremely careful about hearsay evidence. In this case there is a considerable amount of what one might describe as background material . . . Inevitably, all institutions have, to a greater or lesser extent, their rumour mills but this hospital is relatively isolated, it is a small community and perhaps because of its very isolation and size, one suspects that when events occur word gets around and for example, perhaps second or third hand information usually from someone who may be included in a report or statement. I advise you in the strongest terms, in the circumstances of this case, to guard against accepting hearsay evidence as primary evidence of fact. When you consider a piece of evidence, please consider its origin; whether its source is first hand from a person who is present or from a document being contemporaneous. If you decide it is not then unless it is supported by some evidence that is first hand, I would advise you not to rely upon it as they have particular relevance to third party reviews conducted by the Assessment Panel. What I would say about these is that if there is material in the form of hearsay evidence which is critical of Dr Wilson, though Dr Wilson is implicated in matters of dispute then unless the interviewee has given oral evidence before you, you consider the context that they have not been the subject of cross-examination before you and if not supported by primary documentary or oral evidence, then you should not rely upon those matters in reaching your conclusions. If you decide that you can properly consider such a piece of evidence then it remains a matter for you what weight you should attach to it."

He then dealt with the problems and the difficulties with his colleagues. He commented that the anaesthetic department had been described as a dysfunctional department and certainly Dr Rollin and the other assessors took this very much into account in coming to their conclusions. It seemed proper that the Committee, when considering this case, should bear this very much in mind when considering the matter as a whole.

61. The Committee, having deliberated for a short time, returned and asked a question, saying they needed advice as to what extent, if any, they could take into account Dr Wilson's conduct and behaviour before them when assessing his performance in the past in Akrotiri. Miss Norton's view was that they had the benefit, albeit he had not himself given evidence, of listening to him and observing him over a lengthy period of time and determining the facts in issue, particularly those relating to his conduct and behaviour in Cyprus and they would and should be able to take into account their own observations and impressions of his character, but should make allowances for the particular stresses and strains that he had been under in presenting his own case to the Committee over a protracted period. Essentially, the legal assessor took the same view. He said that they had seen and heard a great deal from him making submissions and cross-examining and had formed opinions about his personality that might help inform the decision-making considering the primary facts. But he continued:

"You should bear in mind that inevitably in the course of conducting his case he has been under great strain and, further, has been suffering ill-health. He has been cross-examining witnesses who are in some cases people where real animosity may have existed at the time, and indeed may have continued to this day. My advice to you is as follows, therefore. You should not treat Dr Wilson's conduct and demeanour in the course of the hearing as evidence in itself. The only area in which you could consider his conduct and demeanour in the course of the hearing would be when considering specific issues of conduct and demeanour in the evidence. Before you can do so you would have to be satisfied that the conduct and demeanour before you was not brought about simply by the stress and difficulty of appearing in front of you and conducting the case but was sufficiently fundamental to the view present when he was in Cyprus. I would therefore invite the Committee to be circumspect and exercise great caution before relying upon conduct and demeanour before you and I advise you that if it assists you then you can properly take such conduct and demeanour into account."

It seems to me, as I say, that that was a perfectly proper direction.

62. I come now to the Committee's decision which was contained in a letter of 1st November 2004 sent to Dr Wilson. I have already dealt with the findings in relation to the various headings. What it boils down to is that there are no findings of unacceptable performance in relation to his competence. That is a change from what the Panel had decided. Indeed, in relation to the vast majority of the headings, and perhaps the most important of the headings relating to competence, there are findings of acceptability as opposed to any of cause for concern or unacceptable behaviour. Thus, the only matter which was found to be unacceptable, and upon which the finding of seriously deficient performance has been based, was the inability to get on with colleagues and the failure to work as a team. That, of course, does not directly relate to competence but can be important because clearly it can have an effect upon patients. But it is the sort of matter which, going back to the definition of serious deficiency in the guidance, does require an element of persistence. It is important, as it seems to me, in dealing with that sort of alleged deficiency in performance to take very much into account the circumstances in which the failures arose. In the context of Dr Wilson's history, there was no evidence upon which the Committee was able to rely which indicated that there had been deficiencies in this way in dealing with colleagues and fitting in as a team, other than at the hospital in Cyprus. Thus the situation there was of crucial importance.
63. Before going through the findings of the Committee in any detail, I should perhaps simply cite some relevant passages from it. The Committee identified the headings in which they had changed the Panel's view and they said this:

"The reasons for changing the Panel's decision in the above categories included a lack of triangulation, reliance on hearsay evidence which was not tested in cross-examination of the witness or was unsupported by other first-hand evidence or the unreliability of its origin. The Committee had decided that they could no longer rely on Dr Matson's evidence, as already mentioned. Some incidents have been examined in great depth during the course of the hearing, taking into account oral and documentary evidence, including patient case notes which were not available to the Assessment Panel, some of which has contradicted evidence taken into account by the Assessment Panel."

That is clearly a most important observation because it does indicate that the matters which were made the subject of specific complaints were not accepted in their entirety and were indeed contradicted by looking at the contemporaneous documentation in the patient's notes. There was manifestly a degree of exaggeration in the complaints which were put before the GMC. That does not mean that there should not have been a finding of serious deficiency, but it does mean that the evidence which was relied on had to be examined with some considerable care, particularly complaints made by those who, for whatever reason, had fallen out with Dr Wilson.

64. The findings in relation to the heading which they did find unacceptable is of central importance. What the Committee said was this:

"After detailed discussion and detailed consideration of all the evidence and for the reasons set out below, the Committee confirmed the Assessment Panel's grade of unacceptable in the area of -- 'Relationships with colleagues/GPs/teamwork.

In reaching their conclusion, the Committee accepted that the circumstances in which Dr Wilson was working were far from ideal in that there were conflicts between the three consultant anaesthetists in the department for which Dr Wilson was not entirely to blame. Since one of the anaesthetists, Wing Commander McLoughlin, did not give evidence before the Committee, they accepted that they should not consider any matter which originated from her. Additionally, the Committee, when considering the evidence of Colonel Saggar, had very much in mind the animosity that had existed between him and Dr Wilson whilst at Akrotiri and took this into account when considering what weight to give to his evidence. However, the Committee were influenced by the number of people from several disciplines who gave evidence about Dr Wilson's aggressive, confrontational and unpredictable behaviour, his inability to manage conflicts with colleagues, his loss of temper and his inability to function efficiently as a team member. Although the Committee noted that Dr Wilson was working in a small and relatively isolated hospital where rumours and gossip were apparently commonplace, they did not accept Dr Wilson's assertion that the evidence of all these witnesses has been so tainted by this that it should be ignored, or that all these people had conspired against him. They were persuaded that on at least one occasion Dr Wilson's inability to function as a team member led to inappropriate patient management. The Committee were satisfied that Dr Wilson's listening skills were poor and that he sometimes put his own needs before those of the department. The Committee were influenced by the number of people whose relationship with Dr Wilson had broken down. Whilst the Committee do not criticise Dr Wilson's right to question policies and practices, the Committee were satisfied that the manner and times at which he did this were sometimes inappropriate, particularly in a clinical situation. They found that Dr Wilson's criticisms of policies were sometimes entirely negative with no positive alternative suggested. Dr Wilson has referred to himself as 'a whistleblower'. However, the Committee note that neither Dr Hall's report nor any other evidence put before them in relation to neo-natal transfer policies at TPMH, about which Dr Wilson was so seriously concerned, demonstrate that any adverse outcomes in babies delivered at TPMH were necessarily related to neo-natal transfer.

In response to a question, the Committee received advice from the Legal Assessor that in very limited circumstances they could take into account the conduct and demeanour of Dr Wilson in the course of presenting his case to the Committee. This advice was accepted by the Committee. In the event, the Committee, in reaching its decision, did not consider Dr Wilson's conduct and demeanour in the course of the hearing when considering specific issues of conduct and demeanour in the evidence.

Although the Assessment Panel found Dr Wilson's professional performance to have been unacceptable in the area of relationships with colleagues and teamwork, they did not in their formal opinion include this category as an area where Dr Wilson's performance had been seriously deficient. Although they did not explain this apparent inconsistency, they did note that Dr Wilson's difficulties may have been exacerbated by the nature of the military environment. In her oral evidence during your examination-in-chief on day three of this hearing, Dr Rollin stated that although the Assessment Panel judged that relationships with colleagues and team working were unacceptable, she expressed the view that she would be very surprised if that were all Dr Wilson's fault."

They continued:

"The Committee consider that Dr Wilson has not yet demonstrated insight into his serious deficiency in the area of relationships with colleagues and team work, which may indicate the presence of an underlying deep-seated attitudinal shortcoming. Unless he can accept that he has serious deficiencies and is willing to change his attitude, any attempts at remediation and rehabilitation into medical practice are likely to be futile.

However, in order to give Dr Wilson the opportunity to demonstrate that he is capable of achieving the necessary improvements, the Committee have decided to direct that for a period of 15 months his registration shall be conditional on his compliance with certain requirements. In arriving at this period of conditions, the Committee have taken into account their experience of the delays which are often involved in making satisfactory arrangements for re-training and wish to ensure, as far as is possible, that Dr Wilson has an opportunity to complete satisfactorily his re-training prior to a resumed hearing."

65. The conditions were that he should find a mentor who had appropriate skills in developing team-working and had experience in medical management, he had to accept the need for a change in his attitude to team-working and accept a definite commitment to re-training, and might consider the possibility of discussion of a re-entry programme leading to a supervised period of re-training. If such a period of retraining would be appropriate, there were conditions dependant upon that. Dr Wilson has appealed and, as a result, those conditions have not yet come into force.
66. His appeal raises a number of different grounds. They were put finally under three heads:

"(a) Failure to take the context into account and therefore flawed judgment. The CPP has erred in making a judgment in terms of relationships made on limited knowledge of the circumstances and from witnesses with an axe to grind.

(b) Unfair process in trial. Examples of bias, failure to include relevant evidence or call relevant witnesses and failure to allow me to put my case over.

(c) Flawed process. Failure to define allegations charged with evidence against me, failure to define SDDP."

I shall deal with (b) and (c) first. Under bias there were complaints of Dr Rollin's failure to disclose that her late husband had been in the military, and concerns that the Chairman had displayed an attitude which was adverse to Dr Wilson. Reliance was also placed upon an unfortunate incident when the Chairman was observed by Dr Wilson at one stage during a break in the hearing talking to Dr Rollin when she was giving evidence and patting her on the back. If that happened it was very unfortunate. Overall, having considered the transcripts, I take the view that there is nothing in the bias point. It seems to me that the legal assessor's advice was appropriate and, again, there is no substance in any complaint made against him.

67. The failure to adjourn due to the appellant's ill-health was a matter well within the discretion of the Committee and I have already indicated that attempts at judicial review failed. It cannot be the case that lack of representation means there is a lack of equality of arms and that therefore the proceedings could not go ahead. Why Dr Wilson was not represented is not a matter which was, for good reason, considered by the Committee, nor should it have been. Equally, it is not a matter which I am in a position to deal with, and again nor should I because that is a matter between him and his advisors.
68. The Panel did, in my view, take all reasonable steps to ensure he was able to put his case and call all relevant witnesses. In particular, they required that Professor Aitkenhead, who was Dr Wilson's witness and independent expert who had considered the matters and given a report on his behalf in which he indicated his view that the allegations did not, either cumulatively or individually, indicate that there was any serious deficiency in his professional performance was to be called by Miss Norton who was appearing on behalf of the GMC. Dr Wilson then had the advantage of being able to ask him questions which were regarded as cross-examinations. Miss Norton, although it was called re-examination was able, to cross-examine but there was no suggestion that there was any unfairness in that; indeed, quite the contrary.
69. Delay was another matter which was raised. Delay is a most unfortunate circumstance and is certainly not conducive to a fair outcome of the process. The proceedings were unduly protracted and, in effect, although no interim order was made, the appellant has been unable to pursue his career since mid-1999. That is now some six years ago.
70. I have already dealt with the question of particulars. It is true that substantial further documentation was disclosed in early January 2004 and that particulars were put in writing at the legal assessor's suggestion at that time, but the reality is that Dr Wilson had had sufficient particulars of the allegations that were made against him. It seems to me, finally, that all material and relevant witnesses were made available, or would have been made available if that were possible. In some cases it proved impossible; for example, in the case of Wing Commander McLoughlin because she was ill and there were potential problems with some others because some had to come from Cyprus.
71. The determination that the appellant's standard of professional performance was seriously deficient thus rested on his inability to function as a team member, as found by the Committee. There was certainly evidence that it was not only his colleagues who said the relationships had broken down but also other staff supporting that view. Equally, there was evidence that others had had no difficulties in dealing with him on a professional basis, albeit they had had less to do with him. The point made by the appellant that the military might tend to stand together is of some weight. Furthermore, the Committee clearly did not accept that patients had been put at risk or, save possibly at one occasion, been managed in an inappropriate fashion. This meant that the complaints made were to an extent not substantiated.
72. It was not without significance, and the Committee did not in terms refer to this, that his employers did not see the need for any action to be taken against him. His overall assessment was upgraded from 5 to 4. It is true that it was not a ringing endorsement of his professionalism, but it hardly supports the damaging picture painted by the complaints. Such work as he had been doing since his time in Cyprus, which was in conditions that he remained on probation, had given rise to no complaints based on an inability to work with colleagues.
73. It is to be noted that the Assessment Panel, although it found that his relationship with colleagues was a matter where his professional performance was unacceptable, did not regard this as a serious deficiency. They accepted, as was obvious from the evidence, that it was not all his fault. Attitudinal problems and difficulties in personal relationships are of course capable of creating risk for patients. Team-work is needed. Nonetheless, the CPP must be careful not to place too much weight on it if it is the only matter which would justify an adverse finding and one which can have serious consequences for the practitioner. There was only one occasion on which this problem might have adversely affected patient care. The Committee did not identify the occasion but it is reasonable to assume that they were referring to the incident of 14th November 1998.
74. Since it played a central role in the case, I should deal with it in somewhat more detail. Dr Wilson was not on duty or on call that day. At about 6pm he was called by Lieutenant Colonel Saggar to give assistance because Lieutenant Colonel Saggar was supervising the treatment of a patient suffering decompression illness in the hyperbaric chamber and there was a need for an emergency caesarean for a 35-year old with a poor obstetric history. The birth was premature. According to Lieutenant Colonel Saggar, the appellant showed resistance to coming and there was an argument over the telephone, but he did come to help. He was called from the decompression chamber where he went initially, and had to ensure before leaving that the patient was being looked after properly, which he did.
75. On arrival at the operating theatre, he found that the baby was distressed and a decision had been made to transfer the baby. He was asked to accompany the baby but was unwilling to do so as long as the baby was not intubated. There was a discussion involving the anaesthetists and the paediatrician. It seems that it was a heated discussion and unfortunately the husband was present, although the appellant said he did not appreciate that. The mother had had be given a general anaesthetic since the operation was more complicated than had been anticipated. In the end Lieutenant Colonel Saggar agreed to accompany the extubated baby and asked the appellant to take over care of the mother. This he was reluctant to do until she was extubated. This was on health and safety grounds and because he still had concerns over the patient in the decompression chamber.
76. The appellant had little experience in dealing with newborn babies or neo-nates. It may be that this did not help him to accept the responsibility being placed upon him. What is certain is that he had reasonable concerns on safety grounds about the manner in which the transfer of neo-nates was dealt with, and more generally the lack of facilities at TPMH to deal with them if there were problems. It is equally the case that the Committee was entitled to conclude that his reaction showed an inappropriate lack of flexibility and he was far too argumentative. However, there is little evidence to support the conclusion that any of the patients were put at risk and no complaint was made by the parents.
77. The paediatrician wrote on 19th November to the CO, Group Captain Dougherty, raising concerns over two incidents relating to neo-natal management. In each the appellant had questioned the way in which a neo-nate was being transferred on safety grounds. One was the 14th November incident. The letter does not suggest there was any danger which arose in either incident, or that the appellant behaved in an improper fashion. The paediatrician's only complaint was that the appellant had failed to respect his professional judgment and had expressed a different opinion. He concluded:

"On both occasions Dr Wilson failed to respect my professional judgment and expressed different opinion. I do not believe he has the neo-natal experience to do this but of course I am delighted if he wishes to assist. Up until now and over the past six years, assessing and carefully judging each baby individually, we have never had any problems during transportation of ill babies."

78. Professor Aitkenhead, whose evidence was not in terms rejected by the Committee was a very important witness. A report from him was provided to the Assessment Panel and he gave evidence before the CPP. In re-examination, day 36, page 15, there was this question and answer:

Q. "So you could have intubated the baby? You could have taken over the mother if . . . that that was the wrong decision. What should Dr Wilson have done that night in your view in that theatre? What should Dr Wilson have done?

A. In my view he should have stayed there. He should have waited until the caesarean section was finished and the mother no longer required the services of an anaesthetist, and then it should have been decided which of the two of them went with the baby to the hospital in transfer. Once the time had come when it was decided that the child should leave, then if whoever was going to transfer the baby wished the child's trachea to be intubated, the child's trachea should then be intubated. There was no need to intubate here other than to improve safety during transport. The child [in the doctor's view] did not require tracheal intubation at that time which, as I said earlier, is an indication that he did not think the child was in imminent fear of getting into problems and so the intubation was purely for transfer and no indication to intubate until immediately before the transfer was initiated.

Q. What do you think, in your view, did Dr Wilson do in that theatre on 14th November that was good practice? What was good about his performance in the theatre that night?

A. I think it was good practice for him, good practice and safe practice, to suggest that the child's trachea should be intubated before transfer. I think it was also good practice, although it is not entirely clear to me that this was his primary reason, not to wish to have the child transferred before the mother no longer required an anaesthetist.

Q. What was there in his performance in the theatre that night, if anything, that you thought was not good practice?

A. As I have indicated, it was clear that the mother was still under general anaesthesia and [he] insisted that she should be wakened up. I think it would have been preferable if Lieutenant Colonel Saggar had insisted on transferring the child straight away and for him to have agreed to take over the care of the mother although, as I have indicated, that in my view would have been the wrong decision and it would appear to have been another decision to be taken in this hospital influenced, I think, by the military structure and the response to demand rather than perhaps thinking things through carefully on a medical basis. I think it is fairly clear there was a frank exchange of views between Dr Wilson and the other members of the team . . . which were certainly not desirable but perhaps understandable in the tension of the situation."

79. On the issue whether the decompression patient could or should have been seen by the appellant, he said there was no issue and that she was asleep. Notes apparently show she was not asleep but it all depends on what information he was given. He had left a competent deputy matron in charge. He was to be called if needed. He was given a formal warning by the CO on 23rd November. This he regarded as unfair and undeserved, and he produced his own statement dealing with the incident from his point of view on 24th November. I do not need to read it; suffice it to say that it does not accept the critical evidence that was given by some others.
80. There was a meeting held on 16th December after the incident. The appellant was there but refused to comment when asked to do so. It seems that he was then acting under advice, but it was understandably regarded as an unhelpful approach. All this in due course led to conclusions in a report from Surgeon Commander Runchman in which he concluded in these words:

"This was an unsatisfactory meeting due to Dr Wilson's refusal to enter into any meaningful discussion with his professional colleagues. Although the other Consultants and Nursing Officers involved were able to discuss and agree a multi-disciplinary approach to the care of the mother and child during this incident, Dr Wilson was clearly unwilling or unable to do so. This must call into question the safety of obstetric and neo-natal care at this hospital in any case in which Dr Wilson may become involved. Unless Dr Wilson is able to resolve his disagreements with his colleagues to the satisfaction of the Consultant Advisor in Anaesthetics who is currently visiting TPMH, then regrettably it is my professional opinion that the hospital should not accept obstetric admissions while he remains on the staff."

I have no doubt that that was an over-reaction and that it was so, it seems to me, to have been supported by the decision of the Committee.

81. It is by no means clear what amounted, in the view of the Committee, to inappropriate patient management. The Committee were influenced by the number of people whose relationship with the appellant had broken down, but he was clearly regarded as the trouble-maker by the two other consultant anaesthetists. No doubt his reaction did not help, but he had been given a bad name at an early stage and found it difficult to fit in to the military regime. There were already quarrels and bad feeling in the department. His contemporaneous letters showed that he was under considerable strain and some of his concerns were not unreasonable. Allegations that he was unavailable when he should have been and consistently turned up late were not found to have been substantiated. The Committee said that they did not take into account against him his demeanour and conduct in the hearings. Thus they had on this issue little more than the Assessment Panel which had interviewed many involved.
82. It is clear that the breakdown in the relationship was not entirely Dr Wilson's fault. He had had the misfortune to find himself in an most unhappy situation in a department whose the members were already unable to maintain satisfactory relationships. It may well be that he did not deal with the situation in the best manner possible or in a wholly satisfactory fashion, but there has been obvious exaggeration in the complaints and suggestions that he had put patients at risk has not been substantiated. In my view, the Committee failed to make sufficient allowance, given the position in which the appellant found himself. There is little evidence of any substance to support the conclusion that he was generally aggressive, confrontational, unpredictable or that he lost his temper. That he had deficiencies there can be no doubt but, at the end of the day, I have come to the conclusion that there was insufficient evidence to justify a finding that his inability to get on with his colleagues in the circumstances which existed at TPMH over the relevant period amounted to a serious deficiency in his professional performance.
83. I have hesitated long before reaching that conclusion. I recognise that the Committee heard a great deal of evidence over a very long time and that this court should be, and I am, reluctant to interfere. But the appeal is not limited to error of law and the deficiencies do not relate directly to his competence as an anaesthetist. In all those circumstances, I propose to allow this appeal and to quash the decision of the Committee.

Dr Wilson, you are entitled to make an application for costs if you have any costs you wish to apply for?

84. MR WILSON: I do not. May I thank you very much I think that judgment was very fair.
85. MR JUSTICE COLLINS: I am sure you do. I am not sure the other side necessarily approve. That is it?
86. MISS NORTON: My Lord, yes