England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		26/08/2005

Mr Justice Stanley Burnton:

Introduction

1. This is an appeal under section 40 of the Medical Act 1983 as amended against the decision of the Fitness to Practise Panel (formerly known as the Health Committee) of the General Medical Council made on 2 March 2005 in which it decided that the fitness to practise of the Appellant, Dr Sandra Watson, remained seriously impaired and that conditions on her registration should be extended for a further 12 months. She seeks an order quashing the Panel's decision and remitting her case to a fresh Panel.
2. The appeal raises issues of principle as to the role and participation of medical assessors in the procedure and decisions of the Panel under the 1987 Rules referred to below. Dr Watson contends that the assessors exceeded their proper function, with the result that the hearing was unfair, and that the manner in which the assessors' advice was communicated to the parties also rendered the hearing unfair.

The statutory framework

3. The Council is the body responsible for the regulation of the medical profession in the United Kingdom. Its main objective, in exercising its functions, is to "protect, promote and maintain the health and safety of the public": the Medical Act 1983 ("the 1983 Act"), section 1(1A). Prior to 1 November 2004 the Council's Health Committee was responsible for discharging the Council's functions in respect of practitioners' fitness to practise.
4. By section 37(1)(b) of the 1983 Act, where the fitness to practise of a fully registered practitioner, such as the Appellant, was judged by the Health Committee to be: "seriously impaired by reason of his physical or mental condition", the Health Committee was empowered, if they thought fit, to direct, amongst other things, that his registration be conditional on his compliance, during a specified period not exceeding three years, with such requirements as the Committee thought fit to impose for the protection of members of the public or in the practitioner's interests. Since 1 November 2004 the former functions of the Health Committee have been discharged by one of a number of Fitness to Practise Panels of the Council. Where (as in the present case) a case had been referred to the Health Committee for adjudication prior to 1 November 2004, and had not been disposed of by that date, transitional provisions provide that it should be considered by a Fitness to Practise Panel, applying former sections 37 and 38 and Schedule 4 of the 1983 Act, including rules made under that Schedule.

The Rules applicable to the proceedings of the Fitness to Practise Panel (formerly Committee)

5. Paragraph 1 of Schedule 4 to the 1983 Act empowered the Council to make rules for the Health Committee governing, in particular, the procedure to be followed and rules of evidence to be observed in proceedings before the Committee. The applicable rules were contained in the General Medical Council Health Committee (Procedure) Rules Order of Council 1987 (as amended) ("the Rules"). Rules 17 to 21 governed the conduct of proceedings before the Panel. Rule 24 dealt with the Panel's determination, and provided that the Panel:

"(1) …shall consider and determine whether they judge the fitness to practise of the practitioner to be seriously impaired by reason of his physical or mental condition.

(2) In reaching their judgment the [Panel] shall be entitled to regard as current serious impairment either the practitioner's current physical or mental condition, or a continuing and episodic condition, or a condition which, although currently in remission, may be expected to cause recurrence of serious impairment…"

It is not argued that paragraph (2) of Rule 24 goes beyond the statutory power.

6. Where a question arose as to the fitness to practise of a practitioner, rules 6 and 7 made provision for the appointment by the President of the GMC of two medical examiners who, with the practitioner's agreement, would examine him in order to report on his fitness to practise and on their recommendations as to the management of the case. If the practitioner undertook to comply with the recommendations of the medical examiners, the President could, if he thought fit, postpone any further action on the case: i.e., it would not, at least at that stage, be referred to a Health Committee (now the Health Panel). In such a case, the President was empowered by rule 9(1) to request one or more medical practitioners to supervise the management of the practitioner's case and to report if necessary on the practitioner's observance of his undertakings and on his fitness to practise.
7. Rule 9(3) authorised the President to refer a case to the Committee if it appeared to him that, among other things, the physical or mental condition of the practitioner had deteriorated. Where a case had been referred to the Committee, by the President or otherwise, he might direct to the Registrar to invite the practitioner to submit to examination, before his case was considered by the Committee, by one or more medical examiners to be chosen by him and, if the practitioner so elected, by another medical practitioner nominated by him, and to agree that such examiners should furnish to the Committee report on the practitioner's fitness to practise, with recommendations for the management of his case.
8. Medical assessors were the subject of Rule 16:

"The President shall arrange for one or more medical assessors to attend any meeting of the [Health] Committee called to consider a case in accordance with these rules. Such assessors shall be chosen by the President in accordance with Schedule 2, and shall perform the duties set out in that Schedule."

9. Rule 4 further provided that Schedule 2 shall have effect as to the "duties of medical assessors". Paragraphs 1 to 4 of Schedule 2 dealt with the appointment and selection of assessors in individual cases. Paragraph 5 set out the functions of the medical assessors:

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

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

10. The Rules referred to above have been replaced by the General Medical Council (Fitness to Practise) Rules Order of Council 2004, SI 2004 No. 2608. It was common ground before the Panel that the 2004 Rules did not apply to the decision under appeal, which was made at a resumed hearing of the case first heard on 14 March 2003.

The jurisdiction of the Court

11. By section 40(1)(b) read with 40(3A) of the 1983 Act, the Panel's decision may be appealed to the High Court. The appeal is by way of a re-hearing (CPR PD52, paragraph 22.3(2)), and it is open to the Court to substitute its decision for that of the Panel. The appeal may only be allowed if the Panel's decision was (a) wrong, or (b) unjust because of a serious procedural or other irregularity in the proceedings before the Panel: CPR 52.11(3).
12. It is not suggested that the Panel's decision was on the evidence before them one with which the Court should or could interfere, absent any serious procedural error. The question in the present appeal is whether there was a serious procedural error justifying the interference of the Court.
13. Where the issue on an appeal is whether the decision of a disciplinary committee was wrong, the approach of the Court on an appeal was described by Richards J in R (Arley Erlester Clark) v. United Kingdom Central Council for Nursing, Midwifery and Health Visiting [2004] EWHC 1350:

"In broad terms, the approach of the court on an appeal is as follows. Although its function in respect of a statutory appeal is to conduct a rehearing, it is one usually conducted, and conducted in this case, on the basis of a transcript of the hearing below. The appellate court must bear in mind that the decision-making Committee had the advantage of seeing and hearing the oral evidence given, and it must accord an appropriate measure of respect and weight to the judgment of the Committee on measures necessary to maintain professional standards and provide adequate protection to the public: see generally Ghosh v General Medical Council [2001] UKPC 29, [2001] 1 WLR 1915, and Gupta v General Medical Council [2001] UKPC 61, [2002] 1 WLR 1691 "

A similar approach was adopted by Collins J in Moody v General Osteopathic Council [2004] EWHC 967 (Admin). See too my own judgment in Threlfall v General Optical Council [2004] EWHC 2683 (Admin) at paragraph 21. The same approach is appropriate where appeal is a challenge to the substantive correctness of a decision of a tribunal charged with deciding whether a professional person is fit to practise, or whether conditions should be attached to his continued practice.

14. Where (as in the present case) it is alleged that an otherwise impartial specialist tribunal has wrongly had regard to inadmissible material, knowledge of that material need not be fatal; its effects must be considered in the context of the proceedings as a whole: R (Mahfouz) v. Professional Conduct Committee of the General Medical Council [2004] EWCA Civ 233. Not every procedural error will result in the quashing of the tribunal's decision. But if a serious procedural error on the part of the tribunal is established, different considerations arise. A doctor is entitled to a fair hearing that complies with the applicable procedural rules, and except in a clear case, the Court cannot determine, and should not attempt to determine whether the decision would have been the same if the serious procedural error had not occurred.

The facts

15. No issue has been raised as to the substance of the Panel's decision: it is not suggested that their decision was not open to them on the information before them. It is therefore sufficient to summarise the medical facts.
16. The Appellant is 50 year-old Consultant Psychiatrist. There is a family history of mental illness. The Appellant herself has a past history of recurrent depressive illness. Her case was referred to the Council's Screener for Health on 30 May 2001 and she was medically examined under the fitness to practise procedures. The medical reports prepared indicated, amongst other things, that following the birth of her second daughter in May 1994 the Appellant had developed post-natal depression. When she returned to work in September 1994 she had used alcohol to self-medicate and had become dependent. Her depression was treated with ECT, and she started to attend Alcoholics Anonymous. In 1999 she became pregnant again, experiencing depression during the pregnancy which was treated with Prozac. Her son was born in October 1999, and she took Dihydrocodeine for pain relief after the birth, and again when she developed a middle-ear infection following her return to full-time work in November 2000.
17. In the light of the medical reports the Screener asked the Appellant to comply with various undertakings concerning her practice, including a requirement that she "abstain absolutely from the consumption of alcohol". On 22 November 2001 the Appellant agreed to comply with these undertakings, and Dr Christine Murray, who had been one of her examiners, was appointed by the GMC as her medical supervisor.
18. On 28 October 2002, Dr Murray wrote to the Screener stating that the results of blood tests taken on 10 October 2002 indicated that the Appellant had been drinking. The Appellant's case was therefore referred to a Health Committee. The reports prepared for the Health Committee hearing stated that there had been a relapse into drinking between March and May 2002 and in September 2002, and she had also drunk between one and a half and two bottles of wine on 27 December. This relapse had been disclosed to Dr Murray.
19. The Health Committee hearing was held on 14 March 2003. The Committee concluded that the Appellant's fitness to practise was seriously impaired by virtue of her depressive disorder, alcohol dependence syndrome (currently abstinent) and opioid dependence syndrome (currently abstinent). Conditions were imposed on the Appellant's registration for 2 years. The Committee directed that it would meet to consider her case before the end of the period of conditional registration and it required her to submit to medical examination by medical examiners chosen on behalf of the Committee.
20. During that two-year period Dr Murray continued to report on the Appellant's progress. Her Gamma GT levels (which may be an indication of alcohol consumption) were significantly raised from August 2003 onwards, although this was subsequently ascribed to gall bladder disease, and the Appellant had her gall bladder removed in early December 2004. Following this operation her Gamma GT levels returned to normal.

The hearing under appeal

21. The resumed hearing of the Health Committee took place on 14 March 2005. In preparation for the hearing the Appellant was examined, with her agreement, by the medical examiners, namely Dr Farmer (who had previously prepared a report on her on 23 January 2003) and Dr Lucas. Both examiners discussed her condition with Dr Murray, and in addition, Dr Lucas spoke to Dr Cantopher, the Appellant's treating consultant psychiatrist, and the Appellant's husband. All four of these doctors provided reports for the Panel.
22. Dr Farmer concluded that the Appellant was "fit to practise without limitation", although he noted that "any reduction of anti-depressants should be cautious and if possible carried out under supervision of a treating psychiatrist". Dr Lucas indicated, in relation to her current mental state, that "addictive traits are noted". He concluded that, "her respective conditions are in full remission and fitness to practise is not seriously impaired at present", but noted that "recurrence cannot be categorically excluded as with any clinical condition of whatever nature. Likewise, a recurrence could seriously impair fitness to practise." However, should there be a recurrence, he was satisfied that the Appellant and her husband would act responsibly and notify her NHS Trust and her colleagues, Dr Murray and Dr Cantopher, in both of whom she had complete trust and faith. Having concluded, however, that "no restrictions are recommended on her fitness to practise", he stated that the future management of her case should include medical supervision by Dr Murray and clinical care under Dr Cantopher. He further noted that "given the diagnoses, inevitable vulnerability persists through no fault of her own".
23. Dr Cantopher stated that the Appellant had been totally abstinent from alcohol with no signs of depressive illness since the beginning of 2003. He had no doubts about her fitness to practise, but he did not give a prognosis. Dr Murray, her medical supervisor, stated that she considered that the Appellant did not need to continue formal supervision under general surveillance of the Council.
24. At the hearing before the Panel on 3 March 2005, Dr Watson was represented by Mr Hockton. The GMC was similarly represented by counsel, Mr A Coleman. There were two medical assessors, Dr Bearn and Dr Chitty, both psychiatrists. Since all of the doctors who had examined the Appellant, including the medical examiner appointed by the GMC, had reported positively, and none had suggested any restrictions on her practice, their written reports were put before the Panel, and they were not asked by either the GMC or the Appellant to attend the hearing to give evidence orally.
25. The case for the GMC was opened by Mr Coleman. He summarised the history of the case and the reports that were before the Panel. He did not contend that any continuing conditions should be imposed on the Appellant's registration.
26. The Appellant gave evidence. She confirmed that she wished the conditions imposed on 14 March 2003 to be revoked. She was not cross-examined on behalf of the Council. She was questioned by the Panel and the medical assessors. She was the only live witness.
27. Following closing submissions the Panel retired, and the medical assessors retired with them. Mr Hockton believed, and I think the circumstances justified his belief, that they had retired to discuss their decision, and that on their return they would announce it. If anything, his belief would have been confirmed by the length of their retirement, between 10.45 and 14.00.
28. When the Panel returned, and before they announced their determination, the Chairman called on the medical assessors to rehearse for the parties the advice which had been given to them in private.
29. Dr Bearn summarised the relevant medical history of the Appellant. He pointed out that there had not been any random urine tests. He summarised his view as follows:

"She has relatively good insight into the depression and the links with her drinking. But there are some concerns that she may be over-optimistic about the risk of relapse in the future. She has a current relapsing condition and are there is clearly a significant risk of relapse, although she has taken a lot of steps to reduce that risk. I think there are potential stresses for Dr Watson, particularly around her responsibilities of being the sole breadwinner, the fact that her husband's health has not been perfect, and the fact that she herself recognised the importance of maintaining her antidepressant medication. While she is making rigorous efforts to reduce the risk of relapse, clearly I think that she would be vulnerable to relapse if she were to experience any severe traumatic life events in the future."

30. Dr Chitty referred to the Appellant's medical history and family background, and continued:

"In view of the length of the history under the numbers of causes for it, I think she remains at substantial risk and is vulnerable to relapse. She emphasises the postnatal aspect and that she hopes I think that things will improve greatly once she has passed the menopause. I think even when that happens there will still be other risks that are substantial and in part she also appreciates that when she talks about the need to continue on antidepressant medication in a life-long way. … I was somewhat concerned that she seems to take the opioid dependence slightly more lightly in that she does not attend groups more specifically arranged to deal with opioids such as Narcotics Anonymous, and it is in this area as well that she is somewhat vulnerable to, if she were to relapse to perhaps not be picked up quickly clearly. … So I have some concern that her vulnerability is there in the future."

31. The Chairman then asked whether there were any questions. On behalf of the Appellant, Mr Hockton then made an application for the Panel to recuse itself. He submitted that:

(a) the medical assessors had exceeded their function in providing their advice; and

(b) it was wrong in principle for the medical assessors to advise the Panel in camera.

32. As to (a), he submitted that:

"It is not … the duty or indeed the role of the assessors, who have not carried out any form of proper clinical evaluation of the doctor, to express their own view on fitness to practise and … this is what has happened."

33. He submitted that it was not acceptable that:

" … an off-the-cuff clinical opinion is expressed which may have significant impact so far as the individual is concerned without the doctor having an opportunity adequately to deal with the matters. Both the assessors who have addressed you appear to me to have strayed way beyond their proper remit, they appear to have commented in some detail on the basis, primarily one presumes of written documentation, about what they see as particular risk factors for the recurrence of this doctor's health problems in the face of very clear evidence from experts appointed by the General Medical Council to deal with that very question."

34. The Legal Adviser advised the Panel that if they felt that the medical assessors had "gone beyond the point of merely giving medical significance of information" they should recuse themselves. The application was refused by the Panel. They concluded that they were satisfied that: " … neither medical assessor has expressed his or her opinion on fitness to practise, nor have they strayed in their advice beyond that which they are entitled to give on the evidence before them including Dr Watson's oral evidence today."
35. As to submission (b), Mr Hockton said that his concern was that both the assessors appeared to have commented on clinical matters concerning the Appellant's fitness to practise in her absence and in the absence of her advisers.
36. The legal assessor advised the Panel. He said:

"The legal position as outlined by Mr Hockton is in fact correct. … the question that arises as to what has been said goes beyond the significance of information before the committee, which is now the panel. That is the legal position."

He did not seek to address Mr Hockton's second objection. After further submissions, he advised that if the Panel decided that the medical assessors had exceeded their role, they should recuse themselves.

37. The Panel rejected the application for their recusal. The Chairman stated that the medical assessors:

"…know very well that they are not there to advise us on fitness to practise, they are there simply to comment on the whole bundle of evidence, the recent medical reports and all the evidence contained within that bundle. At no time do they advise us on their view as to the fitness to practise. That has been made very clear to them and they have adhered to that."

38. The Panel proceeded immediately to give their determination, which was confirmed in a letter of 4 March 2005. They judged that the Appellant's fitness to practise continued to be seriously impaired. They found that she had complied with the conditions imposed on her registration on 14 March 2003. They considered that it would be sufficient to impose conditions upon her registration, which "would be necessary and proportionate, having balanced your interests of the protection of the public and the public interest". They specified 15 stringent conditions to be complied with as a condition for her retention of her registration., and directed that the resumed hearing of her case should take place on or before 16 April 2006, to be heard under the 2004 Rules.

The grounds of appeal

39. The grounds of appeal essentially repeat the submissions made on the half of the Appellant to the Panel. They are as follows.

(a) The panel wrongly had regard to the assessors' opinion on fitness to practise;

(b) The assessors wrongly expressed their opinion on fitness to practise.

(c) The assessors failed to confine their advice to the facts and matters set out in Paragraphs 4 and 5 of Schedule 2 to the General Medical Council Health Committee (Procedure) Rules 1987-97 and specifically to comment on "the medical significance of the information before the committee".

(d) Contrary to natural justice and Article 6 of the Convention, the Appellant was deprived of a fair hearing in that the Panel relied upon the (inadmissible) opinion of experts whom she could not cross-examine and whose opinions were given in private; in so doing the Panel rejected the opinions of those specifically nominated by the Health Committee to opine upon the issue of fitness to practise.

(e) The panel wrongly rejected the submissions made on the Appellant's behalf that the assessors had exceeded their remit and that the Panel should therefore recuse themselves due to the bias/prejudice resulting from the assessors' advice.

40. The GMC deny that the assessors exceeded their remit under the Rules or that any unfairness or appearance of unfairness or bias resulted from the circumstances in which they advised the Panel.
41. After the hearing, I brought to the attention of counsel the European authorities referred to below and the decision of the Privy Council in Procurator Fiscal v Kelly, [2003] UKPC D1. I stated that "two of the points that concern me are the fact that the assessors advised the Panel during in the absence of the parties, and whether (Mr Hockton was) given an opportunity to make submissions or to apply to call evidence in response to their advice". The parties sensibly agreed that they would address these matters in written submissions, thus avoiding the costs of a further hearing. Their written submissions were of high quality. Mr Hockton referred to one additional authority, namely the decision of the Privy Council in Nwabueze v GMC [2000] 1 WLR 1760.

Discussion: (a) general

42. Assessors have been used in the administration of justice in this country for a considerable period. They are appointed when the issues before the tribunal are regarded as requiring expertise that the members of the tribunal do not possess. There is no consistency in their use. As has been seen, medical assessors are appointed in hearings of the Health Panel, yet in civil claims allegations of medical negligence are routinely determined by medically inexpert judges. The status of an assessor is unusual. He is not a member of the tribunal, but neither is he a witness or a party. He cannot be cross-examined if his advice contradicts that of one of the parties. In civil proceedings, understandable issues as to the proper role of assessors, as to the proper procedure to be followed, and as to their merits as against those of expert witnesses, led to their appointment outside the fields of Admiralty actions and costs being unusual. CPR Part 35.15 has been seen as encouraging the appointment of assessors, but in practice they are rarely seen.
43. The classic, but to my mind not very informative, statement of the role of assessors is in the speech of Viscount Simon LC in Richardson v Redpath Brown & Co Ltd [1944] AC 62 at 70 to 71, cited in Sadler v the GMC, [2003] UKPC 59, to which I refer below. However, authorities on the role of assessors in other contexts are no more than the starting point for the consideration of their proper role and the appropriate procedure. Their role and questions of procedure must be determined by the rules applicable to the proceedings in question. In addition, in cases such as the present, which engage the rights of the practitioner under Article 6 of the Convention, the Court is required to take into account the jurisprudence of the European Court of Human Rights when considering the applicable procedural rules and older English authorities.
44. Miss Weir understandably placed great reliance on the decision of the Privy Council in Sadler. I have chosen to discuss the judgment in that case at the end of my judgment, but I have borne it in mind in reaching the conclusions set out below.

(b) The issue before the Panel

45. It was not suggested to the Panel that the Appellant suffered from an actual current serious impairment of her fitness to practise. If she did suffer from a current serious impairment, it could only be by reason of the extended meaning given to that expression by rule 24(2). Its meaning was considered by the Privy Council in Brocklebank v GMC, [2003] UKPC 57, at paragraph 11:

"Their Lordships do not think that the jurisdiction of the (Health) Committee depends upon an assessment of the chances of the impairment recurring. It is sufficient that the condition, if it recurs, may be expected to cause serious impairment. Of course the Committee will have regard to what it considers to be the likelihood of recurrence in deciding whether to impose conditions upon the registration and for how long. But the existence of an underlying condition capable of causing serious impairment if it should recur is sufficient to found jurisdiction."

46. In the present case, it was common ground before the Panel that the Appellant had a condition that might recur, and that if it recurred it was liable seriously to impair her fitness to practise. It follows that the Panel had the power to regard her current fitness to practise as seriously impaired. Although I do not think that this was appreciated at the hearing, as a matter of law the only question for the Panel was whether they should so regard her fitness to practise, and if so whether it would be sufficient for the protection of the public for conditions to be imposed on her registration, and if so what conditions. Conditions should not be imposed if they were unnecessary for the protection of the public or were not in the interests of the Appellant, and any conditions imposed should not go beyond what were necessary and proportionate for the protection of the public or the interests of the Appellant.
47. It follows that the medical reports placed before the Panel went to the question whether, assuming it was unnecessary to take any more drastic action, it was necessary to impose conditions on the Appellant's registration, and if so what those conditions should be.

(c) The circumstances in which the assessors gave their advice: the principles applicable

48. Article 6 of the European Convention on Human Rights applied to the hearing under appeal, and the Appellant was entitled to a fair hearing complying with its requirements. In a series of cases, the European Court of Human Rights has held that a government commissioner (commissaire du gouvernement) in France, and a procureur général in Belgium, who advise tribunals on the issues in cases, must not retire with the tribunal when it considers its verdict if the rights of the individual under Article 6 are not to be infringed. Neither a government commissioner nor a procureur général is formally a party to the proceedings, and they advise the tribunal independently of the parties and objectively. However, by expressing a view on the issues or on the appropriate decision of the court or tribunal that is contrary to the case of a party, he gives an impression of partiality. The requirement of the fairness of the proceedings requires that he gives his advice in public, in circumstances in which the parties have an opportunity to comment on it, and that he does not retire with the tribunal when they consider their decision, when he would have the opportunity to advise them further or differently. See Borgers v Belgium (1991) 15 EHRR 92; Vermeulen v Belgium (1996) Jan 26, App. No. 19075/91; Kress v France (App. No. 39594/98).
49. In Van Orshoven v. Belgium (1998) 26 EHRR 55, the court followed these decisions in a case in which the Court of Cassation had heard an appeal from an order striking the applicant doctor from the register. Again, the European Court of Human Rights held that there had been a breach of article 6.

"41. Regard being had, therefore, to what was at stake and to the nature of the submissions made by the avocat général, the fact that it was impossible for the applicant to reply to them before the end of the hearing infringed his right to adversarial proceedings. That right means in principle the opportunity for the parties to a trial to have knowledge of and comment on all evidence adduced or observations filed (see, among other authorities and mutatis mutandis, the Vermeulen judgment cited above, p. 234, para. 33; and the Nideröst-Huber v. Switzerland judgment of 18 February 1997, Reports 1997-I, p. 108, para. 24)."

50. Care is required before applying these decisions in different contexts. In Mort v UK, Application no. 44564/98, the Court considered the role of a justices' clerk who had questioned a defendant who had failed to pay a fine and then retired with them when they considered their decision. The Court distinguished the clerk from officers such as the procureur général in Belgium and the government commissioner in France:

"The Court recalls that the justices' clerk acts solely to assist the magistrates, who are lay judges. This may involve giving advice on law or procedure, taking notes of evidence and on occasion conducting examination of witnesses on the justices' behalf .... There is no question of the justices' clerk enjoying any role in the proceedings independent of the justices, or having any duty with regard to influencing a decision in any particular direction. In that respect, the clerk's position can be distinguished from officers such as the procureur général, avocat général or commissaire du gouvernement, who make submissions to the courts concerning their personal views on the outcome of particular cases (see Borgers, cited above, Lobo Machado, cited above, and Kress v. France, no. 39594, [GC] judgment of 7 June 2001 ...). On that basis, no problem arises in the normal course of events if a justices' clerk retires with the justices and it is not known what assistance, if any, he or she in fact furnishes to them. Assuming the clerk fulfils the role provided by law, his or her presence during the deliberations of the justices must be regarded as part of the ordinary functioning of the court."

51. In Nwabueze v GMC, the legal assessor to the Professional Conduct Committee had given the Committee advice during their retirement which had not been given in the presence of the parties. On the Committee's return, the assessor informed the parties what that advice had been. Without the parties having been given an opportunity to comment on that advice, the chairman announced the decision of the Committee. Lord Hope of Craighead, giving the judgment of the Privy Council, referred to the procedural rules governing the assessor's advice, and continued:

"… their Lordships consider that the principle which lies behind the requirement that the parties should be informed of the assessor's advice to the committee is that of fairness, and that fairness requires that the parties should be afforded an opportunity to comment on that advice and that the committee should have an opportunity to consider their comments before announcing their determination. The transcript of the proceedings indicates that the chairman regarded the legal assessor's statement about the legal advice which he had tendered to the committee while they were deliberating in camera as a mere formality, as the committee had already arrived at their determination which he was about to announce. This was a misconception, as the reason why the legal assessor's advice to the committee must be given or made known to the parties afterwards in public is so that the parties may have an opportunity of correcting it or asking it to be supplemented as the circumstances may require. In this respect the requirements of the common law would appear to be at one with those of article 6 of the Convention…"

52. In that case the practitioner's appeal was dismissed because the advice in question could not have been materially contested. The failure to permit the parties to make submissions on it was therefore immaterial. In the present case, one of the possibilities open to the Appellant, if the opportunity had been given, was to ask for an adjournment so that the doctors whose written reports were before the Panel could respond to the assessors' opinions.
53. In Procurator Fiscal v Kelly, [2003] UKPC D1, the Privy Council considered the compatibility with the Convention of the practice of clerks to justices in Scotland. Lord Hope, giving the majority opinion (with which Lords Bingham and Hutton agreed), said:

"69. I suggest that the practice which should be followed by the clerks and justices in the district court in this matter should be as follows. Any advice which the clerk gives to the justice in private on matters of law, practice or procedure should be regarded by them as provisional until the substance of that advice has been repeated in open court and an opportunity has been given to the parties to comment on it. The clerk should then state in open court whether that advice is confirmed or is varied, and if it is varied in what respect, before the justice decides to act upon it. It would be helpful if guidance on this matter could be incorporated in the handbook and brought to the attention of justices and clerks by issuing an appropriate circular. It will, of course, be open to the parties to bring such guidance to the attention of the court if there is reason to think that it is not being observed by either the justice or the clerk at the trial.

70. I would hold that, if these steps are taken in this case when it comes to trial, the giving of advice by the clerk to the justice will be compatible with the accused's Convention rights."

54. So far as legal advisers to lay justices sitting in magistrates' courts in England and Wales are concerned, paragraph 55.7 of the Practice Direction (Criminal Proceedings: Consolidation) [2002] 1 WLR 2870, is as follows:

"At any time justices are entitled to receive advice to assist them in discharging their responsibilities. If they are in any doubt as to the evidence which has been given, they should seek the aid of their legal adviser, referring to his notes as appropriate. This should ordinarily be done in open court. Where the justices request their adviser to join them in the retiring room, this request should be made in the presence of the parties in court. Any legal advice given to the justices other than in open court should be clearly stated to be provisional and the adviser should subsequently repeat the substance of the advice in open court and give the parties an opportunity to make any representations they wish on that provisional advice. The legal adviser should then state in open court whether the provisional advice is confirmed or, if it is varied, the nature of the variation."

55. It follows that, as in the case of legal assessors to disciplinary tribunals, the requirements of a fair trial are not necessarily infringed if the legal adviser retires with the justices; but the parties must be given an opportunity to make representations on the advice that has been or is given.
56. The role of a medical assessor is not the same as that of a legal assessor to a tribunal (in which I include a Health Panel) or a legal adviser to justices. In the first place, as the European Court of Human Rights pointed out, legal advisers do not in general give their personal views on the facts or the outcome of a case. In the present case, the assessors did not in terms give their personal views on the outcome of the case: they did not state in terms that it was necessary for conditions on the Appellant's registration to be continued, or what those conditions should be. But their opinions, if accepted by the Panel, made it inevitable that at the very least conditions would be imposed, and for that purpose they would have to find that her fitness to practise remained seriously impaired under rule 24(2).
57. There is a further difference between the role of a legal adviser or assessor and that of a medical assessor. A legal adviser to justices advises only on questions of law, and the decisions of the justices may be appealed on issues of law. A medical examiner advises on factual issues, and there is no appeal against a Health Panel's decision on issues of fact. In my judgment, this makes it more important that advice on issues of fact, such as the medical significance of the information before the Panel, should be given openly and that the parties should be able to respond to that advice before the Panel makes its determination.
58. It is, I believe, significant that the effect of CPR Part 35.15 Practice Direction on Experts and Assessors require that an assessor's written report be sent to the parties before the hearing of their case. The result is that at the hearing the parties can address the assessor's advice in evidence and in submissions. In The Owners of the Ship "Bow Spring" v The Owners of the Ship "Mnzanilloi II" [2004] EWHC 1802 (Amdlty) the Court of Appeal referred to the nineteenth century practice of the Admiralty assessors retiring with the judge and on their return the judgment being given and said:

"61. Such a practice would not, in our view, be compatible with Article 6; and it is right that, except in cases where such a discussion is unnecessary in the light of submissions made earlier, the preferable modern practice of putting questions to the assessors after discussion with counsel should be complemented by a practice of disclosing their answers to counsel, either orally in writing – in order that any appropriate submission can be made as to whether the judge should accept their advice."

59. I shall consider below the judgment of the Privy Council in Sadler v the GMC. For the reasons given below, it does not affect my conclusions, derived from the above authorities, which I set out in the ensuing paragraphs.
60. In my judgment, the authorities to which I have referred above establish that those who advise a tribunal on issues of fact, whether as its experts or as assessors, should do so openly, in the presence of the parties, and in circumstances in which the parties have an opportunity to make submissions on that advice before the tribunal makes its decision. This is, in general, what fairness requires. If the advice is controversial, there may be circumstances in which the tribunal may have to consider whether to permit the parties to put before the tribunal their own experts' responses to that advice.
61. The medical assessors' special relationship with a tribunal makes it the more important that all of their advice is given in the presence of the parties. The assessors are not parties to the case before the Panel. Nor are they members of the Panel. Where their advice may be adverse to the practitioner's case, it is particularly important that it is given in the presence of the parties, before the Panel deliberates on its determination, and in circumstances in which the parties have an opportunity to address that advice. Otherwise, the suspicion may be created that the advice given in private was not precisely the same, or was not given in the same manner, as that announced in public, or that the assessors have exercised influence on the decision of the tribunal. A perception of unfairness, and of bias on the part of the tribunal, is liable to be created.
62. The fact that the Panel's decision is not announced until after the medical assessors have informed the parties of the advice they have given will not make the hearing fair.
63. I do not think that Ms Weir quarrelled with the above statement of principles. The issue between the parties was rather whether the Panel had given the practitioner an opportunity to address the medical assessors' advice before they arrived at their decision.

The circumstances in the present case in which the assessors gave their advice

64. Mr Hockton submitted that the parties were not told of the medical assessors' advice until after the Panel had made their decision. Ms Weir submitted that that was not what had happened: Mr Hockton had had an opportunity to make submissions on the assessors' advice, and had in fact done so.
65. In my judgment, Mr Hockton's submissions on this issue are well-founded. After the medical assessors had rehearsed before the parties the advice that they said had been given to the Panel in private, the chairman asked whether there were any questions, but since the assessors cannot be questioned by the parties, it is difficult to see what he had in mind. The transcript shows that when the Panel returned after their deliberations, Mr Hockton believed that they had already reached a determination. The circumstances justified his belief, given that final submissions had been made. His belief would have been confirmed by the length of their retirement, between 10.45 and 14.00. It could not have taken that time for the medical assessors to inform the Panel of their advice as repeated in the presence of the parties. During the course of the ensuing proceedings, Mr Hockton informed the Panel that that had been his understanding. He was not contradicted by the chairman or by the legal assessor, and Mr Coleman did not suggest that he was mistaken.
66. Furthermore, once Mr Hockton's recusal application had been rejected, the Panel announced its determination immediately without giving any opportunity for comment on the substance of the assessors' advice. While Mr Hockton had commented on that advice and its reliability in the course of his submissions that the assessors had exceeded their proper function and that the Panel should recuse themselves, that was not in my judgment sufficient to render the proceedings fair. If the Panel had not yet made up their minds before the medical assessors rehearsed their advice, they should have said so when Mr Hockton informed them of his belief that they had done so, and he should have been given the opportunity to make submissions on the content of the advice, and, if he thought it necessary, to seek an adjournment of the hearing with a view to asking the doctors whose reports were before the Panel to give live evidence. The fact that the Panel announced their determination immediately after their rejection of the application for their recusal fortifies the inference that when they returned at 2 pm they had already made their decision on the substance of the case.
67. In any event, the question is not simply whether the Panel had made up their minds before the medical assessors informed the parties what their advice had been, but whether an impartial, well-informed observer would have thought that they had done so. For the reasons I have given above, I conclude that this observer would have done so. And if the observer would have done so, Dr Watson was entitled to consider that she had not received a fair hearing.
68. In my judgment, the chairman should have asked the assessors to give their advice after the conclusion of the evidence, and before submissions. It is the evidence before the Health Panel, rather than the parties' submissions, that is the information referred to in paragraph 5 of Schedule 2 to the Procedure Rules. I do not have to decide whether the retirement of the medical assessors with the Panel is of itself objectionable, but, as I have indicated, I think that it is a practice that should be avoided if possible. Where the medical issues have been comprehensively canvassed during the hearing, it should not be necessary for the assessors to retire with the Panel; if they require further advice, the better course is for the Panel to return and to ask for it in the presence of the parties.

(d) The content of the assessors' advice

69. I have considerable sympathy with Mr Hockton's principal submission, i.e. that the assessors' advice went beyond its proper scope. The line between advice on "the medical significance of the information before the Panel" and the decisions to be made by the Panel itself may be difficult to draw, but some line must have been intended. Paragraph 5 of Schedule 2 to the Rules must be interpreted in the light of all of the provisions of the Rules. As stated above, they provide for the practitioner to be examined, if he agrees, by two medical examiners chosen by the President, who report on his fitness to practise. Those reports address the specific facts of the practitioner's medical condition, and they make recommendations. The medical examiners have a far better opportunity to assess the condition of the practitioner than the medical assessors, who are confined to assessing the practitioner on the basis of his or her evidence before the Panel. There is force in Mr Hockton's submission that at least in many cases, of which the present may be one, that will be a slender basis on which the assessors could be expected to disagree with the medical examiners.
70. Ultimately, however, I am unable to accept the entirety of Mr Hockton's submission. If I refer to the advice given by Dr Bearn, for example, after summarising the Appellant's history in uncontroversial terms, he gave advice that was clearly on the medical significance of information before the Panel: he stated that the 2-year period of abstinence from alcohol was a relatively short period in the context of her history; he referred to her strong genetic loading for depression and alcohol misuse; he referred to gaps in testing for opioid and alcohol consumption; and to the significant risk of relapse indicated by her history. Dr Chitty was entitled to advise that the length of the Appellant's history and the numbers of causes for it indicated that she was at substantial risk and was vulnerable to relapse. That was the substance of the advice that they gave.
71. Where I do think that the assessors went outside their proper role was in expressing personal views as to the Appellant's attitude to her condition. For example, Dr Chitty stated that he "was somewhat concerned that she seems to take the opioid dependence slightly more lightly in that she does not attend groups more specifically arranged to deal with opioids such as Narcotics Anonymous". Commenting on her evidence, he said that "she is less clear that opioid dependence might be picked up if it becomes a problem again, particularly by her husband". Those were all expressions of opinion that went beyond advising on the medical significance of the information before the Panel. They were opinions appropriate to the medical examiners or to the doctors treating the Appellant, who had had the advantage of properly examining her. However, whether they were sufficient on their own to lead the Court to interfere with the Panel's determination is a question I do not have to consider.
72. Whether a Panel should give any significant weight to the diagnosis or prognosis made by a medical assessor based entirely on his reading of the papers in the case and his impression of a practitioner when giving evidence, if that diagnosis or prognosis differs from that of the medical examiners, is a different question. Clearly, a Panel should be cautious before doing so, if they should do so at all. They must bear in mind the limitations on the information available to the medical assessors as compared with that available to the doctors who have treated the practitioner and the independent medical examiners who have reported to the Panel. Particular sensitivity is required in a case such as the present, where the GMC does not contend that ongoing restrictions on the practitioner's practice or conditions on her registration are required, and the reports of the medical examiners and supervising doctor do not indicate a requirement for conditions as extensive as those that the Panel imposed on the Appellant.

Sadler v GMC

73. It remains to consider the decision of the Privy Council in Sadler v the GMC. The appeal concerned a decision of the Committee on Professional Performance of the GMC, which hears matters relating to the competence and performance of practitioners. The appellant was an obstetrician and gynaecologist. There had been cases of serious post-operative bleeding among his patients. The Committee considered 4 so-called index cases. The first concerned an operation, expected to be an hysterectomy, during the course of which a fairly large ovarian cyst was discovered. The appellant proceeded to remove it vaginally. The specialist adviser (equivalent to a medical assessor) to the Committee commented that the patient should have had a pre-operative examination, and that he had never seen or heard of an ovarian cyst being removed vaginally, and that such a removal would be a difficult undertaking. In relation to index case 5, the specialist adviser criticised the appellant's method of suturing the stump of the patient's cervix, stating that he had never heard of it being closed from side to side. The contentions of the appellant relating to the role of the specialist adviser were addressed in paragraphs 64 to 66 of the decision of the Privy Council:

64. Mr Hendy submitted that the specialist adviser went outside his proper function in offering his own experience and views to the CPP, almost as if he were giving evidence. Mr Hendy referred on this point to Richardson v Redpath Brown & Co Ltd [1944] AC 62 where Viscount Simon LC said of a medical assessor appointed under the Workmen's Compensation Acts (at pages 70-71),

'But to treat a medical assessor, or indeed any assessor, as though he were an unsworn witness in the special confidence of the judge, whose testimony cannot be challenged by cross-examination and perhaps cannot even be fully appreciated by the parties until judgment is given, is to misunderstand what the true functions of an assessor are. He is an expert available for the judge to consult if the judge requires assistance in understanding the effect and meaning of technical evidence. He may, in proper cases, suggest to the judge questions which the judge himself might put to an expert witness with a view to testing the witness's view or to making plain his meaning. The judge may consult him in case of need as to the proper technical inferences to be drawn from proved facts, or as to the extent of the difference between apparently contradictory conclusions in the expert field … But I cannot agree that [giving evidence] is within the scope of an assessor's legitimate contribution.'

65. In performance hearings before the CPP the Rules make more detailed provision as to the specialist adviser's function than was the case under the Workmen's Compensation Acts. Schedule 1, paragraph 8(6) and (7) of the Rules provide as follows:

'(6) The specialist adviser shall advise the Committee on the medical issues before the Committee and shall do so –

(a) on any question referred to him by the Committee; and

(b) of their own motion if it appears to him that, but for such advice, there is a possibility of a mistake being made (i) in judging the medical significance of any information before the Committee, or (ii) because of an absence of information before the Committee.

(7) The advice of the specialist adviser shall be given in the presence of the practitioner and his representative if they appear at the hearing or, if the advice is given after the Committee have begun to deliberate as to their findings the practitioner shall be informed what advice the specialist adviser has given to the Committee.'

66. What occurred in the course of the hearing appears to their Lordships not to have gone beyond what was authorised by the Rules. In a case where the CPP had the benefit of many highly-qualified witnesses who were examined and cross-examined at length it was a matter for the specialist adviser's judgment whether to express views (on suturing in index case 2, and on the stump closure in index case 5) which cut across (rather than explaining or supplementing) the evidence of the other experts. If he thought it right to do so it might have been better to have done so at an earlier stage in the hearing, so that his views could be put to the expert witnesses for their comment. It would also have been better if the chairman, on reporting what the specialist adviser had said after the CPP's retirement, had expressly invited the appellant's representative to comment if he wished to do so (since that is of course the purpose of the requirement for the advice to be disclosed)."

74. So far as the content of the specialist adviser's advice in that case is concerned, the Rules referred to in paragraph 65 of the judgment differ from those I have to consider. It seems to me that they equate "the medical issues before the Committee" with "the medical significance of any information before the Committee". It would, I think, be regrettable if the meaning of the latter words differed as between different sets of Rules in the same general context, and the Rules considered in Sadler, but I do not think that there is any material difference between the approach of the Privy Council in that case and the views I have expressed. The specialist adviser's advice in Sadler was clearly on "the medical significance of any information before the Committee": whether a vaginal removal of an ovarian cyst was a normal or unusual (and if the latter, how unusual) operative procedure, whether it was a straightforward or difficult operation, whether the appellant's method of suturing was normal or abnormal. There was however nothing like the expression of views that I have criticised in paragraph 71 above.
75. Turning to the circumstances in which the specialist adviser in Sadler gave his advice to the Committee, it does not appear from the decision of the Privy Council precisely what they were, but it is implicit in the above extract from the judgment that his advice had been given after they had retired, and that the chairman had not expressly invited the appellant's representative to comment on that advice. The judgment of the Privy Council does not refer to the jurisprudence of the European Court of Human Rights to which I have referred, or to the decision in Procurator Fiscal v Kelly. The Privy Council in Sadler dealt separately with he appellant's contentions of bias on the part of the Committee, and did not refer to the role of the specialist adviser in that context. I infer that none of the above judgments of the European Court of Human Rights, or the Privy Council's own judgment in Procurator Fiscal v Kelly, had been cited. Whether the judgment in Sadler would have been the same if the Privy Council had had the benefit of those authorities is a question I do not seek to answer.
76. The present appeal differs from Sadler in two important respects. It is implicit in the judgment of the Privy Council that the advice of the specialist adviser was communicated to the parties before the Committee had made its determination, and that counsel for the appellant had an opportunity to make submissions on that advice before the Committee did make its determination, although the Chairman did not expressly ask counsel whether he wished to do so. As I have stated, in the present case the advice of the assessor was given after the Panel had made, or at least appeared to have made, their decision, and counsel for the appellant was not given an opportunity to address the Panel on the substance of the assessors' advice once the Panel had ruled that it was admissible and that they should not recuse themselves. Those are, in my judgment, significant distinctions, which take the present case into those in which the procedure was unfair.

Conclusion

77. In my judgment, the Appellant would have been justified in feeling that she did not receive a fair hearing. For the reasons I have given, the appeal will be allowed on that ground, the determination of the Panel quashed, and the case remitted to be heard by a differently constituted Panel advised by different medical assessors.