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
		11 March 2005

Mr Justice Stanley Burnton:

Introduction

1. This is a statutory appeal by Dr Edward Sinclair Cullen against the determination of the Health Committee of the General Medical Council of 8 October 2004, which found that his fitness to practise was seriously impaired by reason of a condition classified in the ICD-10 Classification of Disorders as F06.7 mild cognitive disorder, and in consequence imposed substantial conditions on his registration. Dr Cullen does not suggest that those conditions, although stringent, would not be appropriate if the determination that his fitness to practise was seriously impaired was well founded. However, he contends that:

(a) The evidence before the Committee was insufficient to permit them to conclude that Dr Cullen's fitness to practise was seriously impaired.

(b) The Committee acted irrationally in preferring the evidence of Dr Katz to the other expert evidence before them.

(c) The Committee failed to give adequate reasons for their acceptance of the evidence of Dr Katz and their rejection of the other expert evidence before them.

2. The Respondent, the General Medical Council, disputes each of these contentions.

The statutory framework

3. The GMC is required to constitute a Health Committee (among others) by section 1(3) of the Medical Act 1983. Section 37 (1) of the Act is as follows:

37. -(1) Where the fitness to practise of a fully registered person is judged by the Health Committee to be seriously impaired by reason of his physical or mental condition the Committee may, if they think fit, 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 is compliance, during such period not exceeding three years as may be specified in the direction, with such requirements so specified as the Committee think fit to impose for the protection of members of the public or in his interests.

4. The procedure of the Health Committee is governed by the General Medical Council Health Committee (Procedure) Rules 1987 as amended from time to time ('the Procedure Rules'). Nothing turns on the provisions of those Rules.
5. There appears to be no authority on the meaning of "seriously impaired". The requirement constituted by the adverb might be thought to be surprising. Many persons would be unhappy to be diagnosed, or to be the subject of surgery, by a doctor whose fitness to practise is significantly impaired, let alone seriously impaired. Whether the degree of impairment is serious must, perhaps, be considered in the light of the possible consequences of medical practise by the doctor whose fitness is said to be impaired. Happily, in the present case, it is unnecessary to reach a final conclusion on this.

The facts

6. Dr Cullen is aged 72. He was a general practitioner, living and working in London until his retirement in 2000. Following his retirement, he sought work as a locum.
7. At the beginning of September 2003, Dr Cullen took up a locum post at RAF Halton. The experience was, to say the least, both unfortunate from the point of view of Dr Cullen's colleagues and from that of Dr Cullen himself; and questions arose as to his treatment of a number of patients. The concerns at Halton were sufficiently serious to lead the Senior Medical Officer, Squadron Leader Withnall, to write to the Health Section of the GMC an 8-page letter setting out his concerns. There were enclosed with the letter 7 statements and other documents. Some of the matters referred to in the letter concerned (allegedly) Dr Cullen's irascibility, aggressive and insulting behaviour towards colleagues and junior members of staff. There were allegations that he had been asleep during clinics. It was stated that he had been unable to maintain concentration, that his speech was slow and rambling, with long unexplained silences, and that he had shown slowness in comprehension. The practise manager commented on the dramatic decline in both Dr Cullen's "communication abilities and overall awareness" since their first meeting in August of 2002. A Dr Shaikh stated that when he met Dr Cullen on 1 September 2003, "His speech was slow and (he) did not appear to comprehend anything quickly… I felt his comprehension was not good and I had to repeat many times to explain the problem." Some concerns related to his prescribing, of which the most serious was the allegation that he had prescribed Amoxycillin to a patient who was immuno-suppressed without sight of her full medical records, saying he would look them up later and telephone her and tell her to stop taking the tablets if he found that they were inappropriate.
8. Between June and August 2003, Dr Cullen had worked as a locum at RAF Digby. In a letter to Squadron Leader Withnall dated 19 September 2003, which Squadron Leader Withnall enclosed with his letter to the GMC, Squadron Leader Abbott, the Senior Dental Officer, wrote of Dr Cullen's rude and dismissive behaviour to staff, his arrogance and aggressiveness, and his inability "to maintain a dialogue, because he often strayed from the relevant issue".
9. The matters referred to in Squadron Leader Withnall's letter resulted in his decision to terminate Dr Cullen's employment summarily, while paying him for the balance of its proposed duration. Squadron Leader Withnall concluded his letter by stating: "… whilst making no allegations of seriously deficient performance or professional misconduct, my practise considered that Dr Cullen should receive appropriate professional support if this is considered necessary". He accepted that Dr Cullen disputed the statements in his letter.
10. Squadron Leader Withnall's letter rightly led the Screener for Health to invite Dr Cullen to be examined by two medical examiners who would provide reports on his fitness to practise. Dr Cullen consulted the Medical Protection Society, who referred him to RadcliffesLeBrasseur, who agreed to act on his behalf. They sent to the GMC a statement of Dr Cullen disputing the statements in Squadron Leader Withnall's letter and a short statement of Mrs Cullen, but stating that Dr Cullen agreed to be examined. They, or Dr Cullen himself, approached Group Captain Kiralfy, the Station Commander at RAF Digby where Dr Cullen had worked as a locum in July and August 2003. In his letter dated 1 December 2003, Group Captain Kiralfy stated that Dr Cullen had been:

"Very busy when a minor flu epidemic with complications hit the base. I can talk from experience, as I was affected badly, and I was delighted by Dr Cullen's care and professionalism.

Dr Cullen proved to be a most worthy, careful and professional medical practitioner, and I would recommend his services strongly."

11. Arrangements were then made for Dr Cullen to be examined by Dr Kalyani Katz, a consultant psychiatrist, and Professor Brice Pitt, a Fellow of the Royal College of Psychiatry, as the nominated medical inspectors of the GMC. Dr Katz saw Dr Cullen on 17 December 2003. She had before her Squadron Leader Withnall's letter and its enclosures, and the correspondence between the GMC and Dr Cullen's solicitors. She said later that during their discussions about the complaint, "(Dr Cullen) referred to behaviour of his colleagues in the paranoid way." However, her view was that his feelings were not of delusional intensity and his behaviour was "more likely to be as result of error of judgment". Dr Katz used a Mini Mental State Examination, a clock completion test and some other tests to assess Dr Cullen's frontal lobe functions. Although Dr Cullen made a number of errors, his score on the Mini Mental State Examination was 26/30. Dr Cullen did not complete the clock face fully: he failed to insert the numbers from five to eight on the lower part of the clock face. There were a number of deficiencies in the frontal lobe tests performed by Dr Katz. Her report stated that her "probable diagnosis" was of "frontal lobe dysfunction" and "generalised cognitive impairment that may be indicative of a dementing process". She stated that her recommendations on fitness to practise would "depend on the results of the neuropsychologist's assessment and the brain scan". She "strongly" recommended that he be referred to a specialist neuropsychologist for assessment and for a brain scan.
12. On the following day, 18 December 2003, Dr Cullen was seen by Professor Pitt. He was aware of the concerns expressed at RAF Halton about Dr Cullen's manner and competence. The tests carried out by Professor Pitt suggested an IQ approaching 120. Dr Cullen performed well on CAMCOG. On this occasion, he performed the clock and roaring test ably. On the Mini Mental State Test he scored 29/30, while on the Paired Associates Learning Test he scored a borderline 13/21, showing clear learning in the three stages. Professor Pitt stated that he had found no evidence of mental disorder. Dr Cullen's performance had been very different from that reported from Halton. He concluded: "On today's showing I would not place restrictions on his practise." But he added:

"However when I rang him to arrange today's appointment he bungled in a way which led me to expect far more evidence of impairment than I have found. Further, my co-assessor Dr Kalyani Katz yesterday found evidence of possible frontal lobe impairment, as well as an abnormal Clock Drawing Test.

It seems therefore, that his condition may fluctuate (as is characteristic, say, of cerebral vascular impairment) and I concur with her recommendation that neuropsychological testing and brain imaging might be helpful in reaching or excluding a psychiatric diagnosis."

13. Dr John Bradley, Emeritus Consultant Psychiatrist at a London NHS Trust and Honorary Senior Lecturer at University College London, was instructed on behalf of Dr Cullen to make a psychiatric examination. He saw Dr Cullen on 9 November 2003 and reported by letter dated 15 December 2003. He concluded:

"1. On the basis of my examination, I have been unable to identify any evidence of mental disorder. On ordinary clinical testing there is no evidence of a cognitive deficits. I do not think that detailed neuropsychological testing would be indicated at the moment.

2. …

3. Dr Cullen has been a single-handed practitioner for 40 years, who has developed his own ways of conducting his practise. Although he seems to have coped well at some RAF bases … I think it is understandable that he would have some difficulty in adjusting to service procedures and working in a team under the direction of a man half his age. At RAF Halton there appeared to been some interpersonal difficulties and communication problems.

4. It is not possible from me to comment upon Dr Cullen's competence to practise in terms of his medical knowledge, but I would not regard his fitness to practise as being impaired because of any form of mental disorder."

14. As a result of Dr Katz's recommendation, on 16 January 2004 Dr Cullen was assessed by Jeff Roberts, a clinical psychologist. He found that Dr Cullen had a full scale IQ of 115, placing his intellectual functioning in the high average range. His verbal score was 124, in the superior range. However, his performance score was 102, in the average range. Mr Roberts' summary and conclusions were as follows:

Dr Cullen's cognitive profile indicates that he is well orientated to person place and time and his immediate environment. Relative strengths are highlighted in the Verbal domain, (at the Superior range), keeping in line with his post graduate educational levels (at a Doctorate level), and occupational history and include strengths in: acquired general knowledge, verbal comprehension and verbal reasoning, lateral thinking, and working memory of numerical information and arithmetic calculation. A relative strength highlighted in the Performance domain was in Matrix Reasoning (i.e. test of visual reasoning and problem solving).

A significant difference was highlighted in his Verbal – Performances domains, with reduced abilities in Performance related subtests assessing, speed of information processing (including motor response speed in dealing with non-verbal problems), visio-spatial tracking, visual planning and sequencing and perceptual organisation.

In general, individuals with these weaknesses may experience difficulties in the analysis of multiply information presented simultaneously under more complex conditions. Over sustained time, this is likely to cause fatigue, affect concentration and they may appear slower in response rate and inattentive due to the extra effort required to process more complex visual and verbal information.

Qualitative information gathered through the testing concurred with these findings, with an observed slow response time in completing the non-timed tasks as well as 'timing out' in some of the performance based tests, resulting in reduced scores. Furthermore, Dr Cullen at times needed information to be repeated and appeared to "work hard" at concentrating with more complex executive based tests.

In a vocational context Dr Cullen may benefit from increased structure and prompts and by engaging in a more paced work regime (i.e. sessional basis) that allows for regular breaks to alleviate the affects (sic) of sustained concentration and fatigue.

With Dr Cullen's consent, a repeat cognitive assessment in 12 months time to closely monitor any changes in cognitive functioning from this baseline may prove useful regards future capacity.

15. A CT brain scan was performed on Dr Cullen. It showed no abnormality.
16. Professor Pitt considered Mr Roberts' neuropsychological report and the report on Dr Cullen's CT brain scan. His opinion, set out in his letter dated 18th February 2004, was as follows:

These findings do not support a diagnosis of frank mental illness but do suggest that Dr Cullen is beginning to "show his age". The label mild cognitive disorder (ICD-10 F06.7) or Age-Associated Memory Impairment might possibly be applied.

It looks as if the demands of his last locum GP post may have been too much from him, which is consistent with Mr Roberts' observations in paragraph 3. He would probably find any form of retraining unacceptable, both limitations on his working alone and unsupervised should be considered.

17. Dr Katz was also sent Mr Roberts' neuropsychological assessment. She reported to the GMC by letter dated 18th February 2004, before she had seen the results of the CT brain scan. She stated that the difference found by Mr Roberts between Dr Cullen's verbal and performance functioning was "suggestive of some organic impairment, possibly due to early dementing illness (fronto-temporal?)". She recommended that Dr Cullen would "require extremely close supervision while prescribing given Mr Roberts' recommendations and some of the recent difficulties he faced at the last practise". In addition, Dr Cullen should have a repeat cognitive assessment in six months, as Mr Roberts had suggested.
18. These medical reports led the Screener for Health to invite Dr Cullen to give stringent undertakings concerning medical supervision of his work. Dr Cullen declined to do so. Following further correspondence, the Screener referred Dr Cullen's case to the Health Committee.
19. Dr Cullen obtained an assessment by Dr Marcus Rogers, a consultant neuro-psychologist. Dr Rogers conducted only one test, the Wechsler Adult Intelligence Scale – III. His testing was narrower in scope than Dr Roberts'. Dr Rogers' test showed a Verbal IQ of 144 ("very superior"); a Performance IQ of 117 ("high average"); and a Full Scale IQ of 136 ("very superior"). Dr Rogers commented, in his letter dated 19 March 2004: "Congratulations you did very well."
20. Dr Bradley again saw Dr Cullen on 7 April 2004. Dr Bradley's letter dated 15 April 2004 does not indicate that any further tests were performed. It consists of a review of the more recent reports on Dr Cullen and of his discussion with him. He concluded:

Dr Cullen has spent most of his career as a single-handed general practitioner and over the years may well have become somewhat less flexible in adjusting to new situations. Nevertheless, I think he could probably continue to practise reasonably effectively without endangering his patients without formal supervision. We do not know whether his performance IQ has dropped in the last few years. It is after all still in the average range and it is not clear what clinical significance this would have.

21. Professor Trimble saw Dr Cullen again on 10 June 2004. He reported by letter dated 28 June 2004. Professor Trimble considered the medical reports that had been obtained on Dr Cullen and examined him. He concluded:

I can find no evidence of any mental disorder with Dr Cullen, and there is no evidence of any past psychiatric disorder or neurological disorder that might suggest an impairment of his ability to practise.

He performs in the high average to average range on intelligence tasks, there is no evidence of acquired deficit of cognitive abilities from those tasks. It is not possible to make a diagnosis of cerebral damage on the basis of neuropsychological testing alone. His memory testing seems to be very adequate, and I cannot suggest that he shows evidence of even a memory decline that one would expect to detect in somebody was over 70.

I do not consider the clinical conclusions of Dr Katz to be reliable or valid, and cannot see any medical grounds for preventing Dr Cullen having a licence to continue to practise medicine.

22. Lastly in this review of the medical reports preceding the hearing before the Disciplinary Committee, on 20 July 2004 Dr Cullen was seen by Dr O S Frank, a consultant psychiatrist. In his report dated 22 July 2004, Dr Frank concluded:

I could find no evidence of an underlying psychiatric disorder or cognitive impairment in this doctor. I note that Professor Trimble, who is an eminent neuropsychiatrist, had reached similar conclusions and in my view there is no reason why Dr Cullen should not continue to practise medicine.

23. Thus the preponderance of medical opinion at this stage was that Dr Cullen was fit to practise. Substantial doubt had been cast on the validity of Dr Katz's conclusion by Professor Trimble, "an eminent neuropsychiatrist". Dr Cullen's performance in IQ tests was difficult to explain except on the basis that his abilities varied from day to day, and had been good when tested.

The hearing before the Health Committee

24. The Health Committee consisted of Dr J Wood, a geriatrician, as chairman, Doctors Baker and Wilson, who are general practitioners, and Ms W Golding and Mrs A Thorne, lay members. The Committee was assisted by a legal assessor and two medical assessors. Both the GMC and Dr Cullen were represented by counsel, Miss Clare Sibson for the GMC and Mr James Sturman QC for Dr Cullen.
25. Professor Pitt was the first witness called by the GMC. In his evidence in chief, he summarised the results of his tests. He was asked to explain the clinical significance of the result of the Pairs Associates Learning Test that Dr Cullen had undertaken. Professor Pitt said:

It is not as widely used as the CAMCOG, I think it would show that he could not be seriously cognitively impaired if he did as well is that. That is what it really comes to.

(The CAMCOG are cognitive tests published by Cambridge University.) He was asked for his opinion overall of Dr Cullen's fitness to practise medicine on the day that he saw him. He answered:

"Well, obviously, purely on his performance on the day I saw him, I would have said he was fit. One would have had to take some notice of everything else that had been said, but what I saw somebody who was clearly performing very competently that day."

Although he said that his findings "do not support the diagnosis of frank mental illness", he adhered to his opinion that Dr Cullen was beginning to show his age. He thought he would have difficulties in working as a general practitioner, principally because of the difficulties reported by the RAF. When asked in what areas of practise Dr Cullen would be impaired, and "What kinds of things would he be unable to do?" He responded:

I do not think "unable", but I think he would be a bit slow to learn new procedures and he might be rather inclined to use what he could remember from the past.

26. In cross-examination, he was asked specifically: "Would you agree that Dr Cullen's functioning is not seriously impaired?" He answered: "I would agree with that."
27. He was asked whether it was the case of that neuropsychological testing in itself was not diagnostic, and that a brain scan or and EEG was required to confirm a suspected diagnosis. He said: "Yes, and probably time as well." He was asked about Dr Katz's diagnosis. As mentioned above, she had produced her second report without sight of Dr Cullen's CT scan. As Professor Pitt agreed that to come to a diagnosis of frontal lobe dysfunction without any physical evidence is dangerous and speculative. He said that it would be rash to proceed to a diagnosis solely upon the results of the neuropsychological testing. He agreed that, when he saw Dr Cullen, there was no evidence of a dementing process. Significantly, when asked whether to come to that probable diagnosis on 17 December 2003 (the date when Dr Cullen was seen by Dr Katz) or 18 December would have been highly dangerous and speculative, he said: "It would be very unfair." When asked about the Dr Cullen's score when he undertook the mini-mental state examination with Dr Katz, Professor Pitt pointed out that a score of 26 out of 30 is "not that bad", and is not suggestive of cognitive impairment; and that the test is less reliable than the CAMCOG. He had not been aware that Dr Cullen had scored 26 in the MMSE with Dr Katz, and when accepting her recommendation of further testing had assumed that she had carried out some frontal lobe tests, which she had not done. When asked about the neuropsychological report of Dr Rogers, he said:

"Yes, he has got a stunning verbal IQ."

28. He confirmed that if Dr Cullen had a varying cerebro-vascular condition, there would be a variation in all the scores between the assessments of Mr Roberts and that of Mr Rogers. There was none. His performance IQ was lower than his verbal IQ, but was still in the top 5 percent of the population.
29. In response to Dr Wilson, Professor Pitt confirmed that in the light of the further evidence he had seen, namely the evidence of the cognitive testing by Professor Trimble and Mr Rogers, which were along the same lines as his own finding, he "would be reluctant to endorse there being restrictions on (Dr Cullen's) practise at the moment in the light of all this that has come to light today". Commenting on the scan, he said:

"To be honest, it would have been better to have had an MRI scan. With the wisdom of hindsight, it would have been better to have had an MRI scan because that would be better at picking up vascular changes. If there was any gross alteration of the frontal lobe, that would have shown up on the CT scan."

30. Other members of the Committee also asked questions of Professor Pitt. He was not re-examined by Miss Sibson.
31. Dr Katz was unable to be present during the first day of the hearing. She gave evidence on the following day. She was unaware of Professor Pitt's evidence. She confirmed that she had been unable to make anything other than a "probable diagnosis" when she saw Dr Cullen:

"I would keep in mind a frontal lobe dysfunction or an early cognitive impairment and because both the mini-mental state and the frontal lobe tests which I did are very rudimentary, they needed to be supported by detailed tests and I recommended neuropsychological tests."

About she said that the report on the scan, which she saw, apparently the first time, while giving evidence, did not change her opinion.

32. Dr Katz was aggressively cross-examined by Mr Sturman. In retrospect, he may regret that, since it appears from the transcript that he engendered sympathy for her with the Committee, and there was a real risk, that I am not sure was avoided, that the determination of the ability of Dr Cullen to practise became a trial of the competence and integrity of Dr Katz. Dr Katz suggested that his MMSE score indicated a decline in his cognitive function. Since she did not know what his score had been, or would have been, at any earlier date than that of her examination of him, it is difficult, if not impossible, to see that this suggestion had a firm medical or logical foundation. At most, she could make a statement such as that his cognitive function was lower than one would expect. When asked in terms whether she was a saying that he was seriously impaired, she first said that "there are significant gaps and that all those ought to be taken into account". Mr Sturman reiterated the question: "Are you saying Dr Cullen's functioning is seriously impaired by reason of an illness?" She answered:

"Certain factors suggest that, i.e. his prescriptions, if you see them, which were definitely a cause for concern, his behaviour to his colleagues."

33. Dr Katz was asked how she had been able to arrive at a diagnosis without reference to the brain scan which, in her first report, she had said was essential. She responded that the results of the neuropsychological tests justified her diagnosis, notwithstanding the lack of any supporting evidence in the scan. When asked whether she stood out against Professor Pitt's changed opinion and Professor Trimble's opinion, she said:

"Yes, I still would suggest that, in my opinion, further serial testing at six-monthly intervals to see if his cognitive impairment has changed or further progressed. I will not be able to retreat from my opinion. I still maintain my opinion."

34. Questions were asked by the Committee. Dr Katz confirmed that the tests she conducted when she examined Dr Cullen were rudimentary, with low reliability. To Dr Baker, she confirmed that the impatience evidenced by the statements from RAF Halton, and irritability, might themselves be a symptom of cognitive impairment, especially of frontal lobe dysfunction; and that a normal scan is not inconsistent with dementia. To Dr Wilson, she said that the significant difference in verbal and performance IQ was indicative of organic impairment. Asked whether such a difference could occur without organic impairment, she said:

"I would choose to answer it by saying, if there is such a difference, we would do further investigations to see if there is an organic impairment."

It seems to me to be implicit in that response that the answer to the question was, "Yes".

35. On behalf of Dr Cullen, Mr Sturman called Professor Trimble. He confirmed the views contained in his report. He was asked whether there was any medical conclusion that could be drawn from the discrepancy between Dr Cullen's verbal IQ and his performance IQ. He replied:

It is quite common in people who use their verbal skills -- people who are literate usually do better or you would expect them to do better on tests of verbal abilities. The verbal skills relate to language, obviously, and the quality of the language used does relate to overall intelligence, but a lot of people who use their verbal skills are perfectly useless at performance tasks, which is manipulating tasks, so understanding the world in three dimensions rather than in a literal sense. So it is not unusual to find a verbal performance deficit. So by itself does not really mean very much.

At a later point in his evidence, he said,

"There are many people in the population who have a significant difference between verbal and performance IQ."

36. Professor Trimble pointed out that it is impossible to establish a decline in functioning without the results of tests carried out at two different points in time. He was asked whether it was possible to diagnose cerebral damage on the basis of neuropsychological testing only. He said that it would be quite inappropriate to do so, and explained:

"I think if a proposition is put forward with any seriousness that somebody is intellectually declining -- in other words, with an age-related decline -- it would have to suggest a dementing process ... I think if a doctor is seriously putting forward that proposition, it would be quite inappropriate to just do neuropsychological testing and leave it at that. These days we do have good indicators of brain structure and functioning. One of them is the CT scan, which has been done. An MRI scan is really now the gold standard and I would personally have thought, particular(ly) if the suggestion is that he might be developing an Alzheimer's disease, for example, that he should have an EEG carried out which is quite a successful indicator of decline of cerebral function, particularly in the elderly, and you do a neurological examination of course to see if there is any evidence of abnormal reflexes, or things like that. I think the proposition that somebody has dementia must, in responsible practise, lead to further investigations being carried out before conclusions can be reached."

37. He referred to the mini mental state examination, and said:

"You cannot make a diagnosis from a mini-mental state examination. In fact, it would be quite fallacious to make a diagnosis on the basis of the mini-mental state examination. It is not why it was developed and that is not how it is used in clinical practise."

He confirmed that is no adverse conclusion could be drawn from Dr Cullen's score of 26 out of 30 on the MMSE with Dr Katz, all the increased score of 29 out of 30 with Professor Pitt, all the difference between those scores.

38. In response to a question from the Committee, he said, because he had come across patients with a significant degrading of cognitive impairment with a normal CT scan, that he would have done an EEG in the case of Dr Cullen; "if you are really worried about things, you can go on and do further tests".
39. The Committee asked Professor Trimble whether the discrepancy between Dr Cullen's verbal IQ and his performance IQ indicated that there had been a decline. His answer confirmed his previous evidence:

"… You cannot say there has been a decline unless you have evidence that it was greater, and this is the fallacy of that conclusion. To get a decline you have to have a previous measurement. … an alternative explanation is that there are some people who are better at verbal than non-verbal tasks and the other thing is I would say this, that the performance tasks, rather unlike the verbal tasks, are time-based so, if you are a little bit slow, which comes with (a) getting older -- again, you know, the ponderousness I have already mentioned about Dr Cullen -- you actually do not do as well on these tasks because they are timed. They are time so you get cut off, so I think again that is another explanation why you get a lower performance than verbal IQ."

40. Professor Trimble was asked to comment on Dr Katz's suggestion that the evidence from RAF Halton supported her diagnosis. He pointed out that she had not so referred to that evidence in her report. He said that he could not make a psychiatric diagnosis based on the fact that Dr Cullen did not get on with certain people in certain settings. Professor Trimble also criticised in trenchant terms Mr Roberts' conclusion: see page D2/47 of the transcript.
41. Significantly, Professor Trimble was not cross examined by Miss Sibson.
42. The Committee then heard Dr Cullen himself. It is unnecessary to refer to any specific answers he gave. The Committee regarded his behaviour as indicative of a loss of function. He was uncertain as to the date of his retirement from the National Health Service, and his answer at D2/64C-D shows him rambling, departing from his response to a question in the middle of his answer, which led Mr Sturman to intervene to ask him to answer the question.
43. As in the case of Professor Trimble, Dr Cullen was not cross examined on behalf of the GMC.
44. Where evidence has been called on behalf of the practitioner, the Procedure Rules (rule 21(3)) empower the Chairman of the Committee to invite the advocate to address the Committee for a second time. Following the completion of Dr Cullen's evidence, the Chairman asked Miss Sibson whether the she had any "advice for us". He stated that normally, the GMC's counsel rehearses their powers. Miss Sibson declined the invitation. As a result, the Committee did not have the submissions of the GMC on the evidence before the Committee, and in particular on the conflict between the view of Dr Katz and the views of Professor Pitt and Professor Trimble.
45. The determination of the Committee is set out in the Appendix to this judgment.

Discussion

46. In considering the decision of the Committee, I am conscious that I do not have the advantage of having been present when the evidence was given or of the qualifications and experience of its medical members, one of whom was a geriatrician. The GMC cited my own judgment in Threlfall v General Optical Council [2004] EWHC 2683 (Admin):

"20. …It would appear from paragraph 52.11(1)(b) (of the CPR) that a re-hearing is generally something different from a "review of the decision of the lower court". The Practise Direction to Part 52 does make apparently different provision: paragraph 22.3(2) provides that appeals under section 23 of the Opticians Act 1989 "will be by way of re-hearing". It is nonetheless clear that a re-hearing in this context is in general a review of the decision of the lower court; c.f. Assicurazioni Generali SpA v Arab Insurance Group [2002] EWCA Civ 1642, [2003] 1 WLR 577. In other words, the appeal court does not normally hear evidence afresh, but considers the appeal on the basis of the record of the evidence given in the court below.

21. Because it does not itself hear the witnesses give evidence, the Court must take into account that the Disciplinary Committee was in a far better position to assess the reliability of the evidence of live witnesses where it was in issue. In that respect, this Court is in a similar position to the Court of Appeal hearing an appeal from a decision made by a High Court Judge following a trial. There is, however, an important difference between an appeal from a High Court Judge and an appeal from a Disciplinary Committee. The Disciplinary Committee possesses professional expertise that a High Court Judge lacks. In the present case, the Committee comprised, in addition to the Chairman and a member nominated by the Privy Council, a dispensing optician, an optometrist, and an ophthalmologist. This Court appreciates that such a Disciplinary Committee is better qualified to assess evidence relating to professional practise, and the gravity of any shortcomings, and it therefore accords the decision of the Committee an appropriate measure of respect, but no more: see Ghosh v General Medical Council [2001] UKPC 29, [2001] 1 WLR 1915, at [33] and [34] and Preiss v General Dental Council [2001] UKPC 36, [2001] 1 WLR 1926 at [26] and [29]. These decisions make it clear that the Court should be more ready to overrule a disciplinary tribunal than previously appeared to be the case. It however remains the position that an appellant must establish an error, of law or fact or of judgment, on the part of the tribunal."

47. This statement applies with equal force to the Health Committee of the GMC. I am therefore conscious of the caution with which it is appropriate to consider the decision of the Health Committee. Against that, the appeal to the Court must be meaningful, and requires scrutiny, albeit benevolent, of the reasons given by the Committee for their decision and of the evidence on which it was based. However, I do not accept the submission made by the submission of the GMC that, in effect, notwithstanding the deletion of section 40(5) of the Medical Act 1963, and the fact that the appeal is no longer limited to questions of law, the test for the Court remains, effectively, the same as that appropriate in judicial review proceedings. In my judgment that fails to give effect to the abolition by Parliament of the restriction of the appeal from the Health Committee to matters of law.
48. I also accept that in appropriate cases the reasons given by the Committee may be concise. In Watt v United Kingdom Central Council for Nursing Midwifery and Health Visiting [2002] EWHC 2303 (Admin), the Divisional Court cited a passage from what was said by Lord Clyde in Stefan v GMC [1999] 1 WLR 1293:

The extent and the substance of the reasons must depend upon the circumstances. They need not be elaborate nor lengthy. But they should be such as to tell the parties in broad terms why the decision was reached. In many cases, as has already been indicated in the context of Article 6 (1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, a very few sentences should suffice to give such explanation as is appropriate to the particular situation.

49. In that case, the Court considered it unnecessary for the reasons to refer to the difference of opinion between medical witnesses. However, in R (H) v Ashworth [2002] EWCA Civ 923, Dyson LJ said, in a judgment with which, so far as is presently relevant, the other members of the Court agreed, referred to a decision of a mental health review tribunal that had not explained why it had rejected the majority medical opinions in the case:

First, as often happens, the Tribunal was required to resolve a difference of opinion between experts as to whether the patient should be discharged. In such cases, it is important that the tribunal should state which expert evidence (if any) it accepts and which it rejects, giving reasons. This is as important in a case where the tribunal rejects evidence in favour of discharge as it is in a case where the tribunal rejects evidence which advocates continued detention. It is not enough for the tribunal simply to state that they prefer the evidence of A and B to that of Cullen and D. They must give reasons. As the Handbook states, these may be brief, but in some cases something more elaborate is required. They must at least indicate the reasoning process by which they have decided to accept some and reject other evidence. What this court said in Flannery v Halifax Estate Agencies Limited [2000] 1 WLR 377, 381G-382D is as apt in relation to the decisions of tribunals as it is to lower courts generally. In giving the judgment of the court, Henry LJ said that the reach of what is required to fulfil the duty to give reasons depends on the subject matter:

"Where there is a straightforward factual dispute whose resolution depends simply on which witness is telling the truth about events which he claims to recall, it is likely to be enough for the judge (having, no doubt, summarised the evidence) to indicate simply that he believes X rather than Y; indeed there may be nothing else to say. But where the dispute involves something in the nature of an intellectual exchange, with reasons and analysis advanced on either side, the judge must enter into the issues canvassed before him and explain why he prefers one case over the other. This is likely to apply particularly in litigation where as here there is disputed expert evidence; but it is not necessarily limited to such cases."

In my view, this passage applies with even greater force where the tribunal decides to reject most of the expert evidence, and adopt the minority view.

50. In the present case, the reasons were not concise. If reasons are given for accepting certain evidence, it becomes more necessary to explain, in a case such as the present, why that contradictory evidence has not been accepted.
51. There was a preponderance of medical opinion before the Committee that there was no evidence of any cognitive disorder of Dr Cullen. That evidence was of two eminent doctors, Professors Pitt and Trimble, the former of who was one of the GMC's nominated medical examiners, and the latter described by Dr Frank as "an eminent neuropsychiatrist", whose reputation was described by Professor Pitt as "very high". Their evidence was ultimately unequivocal, logically sustained, and cogent. Professor Trimble's criticisms of Dr Katz's logic and conclusion were unshaken in the course of his questioning by the Committee, and as I have stated, the GMC did not seek to undermine them by cross examination.
52. The Committee rejected that evidence. They gave no real reasons for doing so. Their reference to Dr Katz's credibility was not a reason to reject what may have been the equally or more credible opinions of Professors Pitt and Trimble. The consistency between the test results of Mr Roberts and Dr Rogers, to which the Committee referred, had been taken into account by Professors Pitt and Trimble. Furthermore, the Committee accepted that neuropsychological tests are not diagnostic.
53. In my judgment, it was particularly important in the present case for the Committee to explain why they felt able to reject the conclusions of Professors Pitt and Trimble. Those conclusions had not been challenged by the GMC during the hearing. Dr Katz's conclusion that there had been a decline in Dr Cullen's functioning was unsustainable, and confirmed to be so by Professor Trimble, in the absence of any results of tests performed on Dr Cullen at any time before she saw him. Her reliance on neuropsychological testing unsupported by other objective evidence was said by the unchallenged evidence of both Professor Pitt and Professor Trimble to be misplaced. Her own first report indicated that her suspicion of organic brain damage required to be confirmed by other testing. The discrepancy between Dr Cullen's verbal and performance IQ was shown not, of itself, to indicate that there had been any impairment. The fact that Dr Katz had reached the conclusion in her second report without sight of the results of the CT scan, which she herself had previously considered to be essential, cast considerable doubt on the reliability of her opinion.
54. I am unable to see the basis on which Dr Katz's opinion, which on analysis of the transcript was flawed, was preferred to that of Professors Pitt and Trimble.
55. The Committee stated that they had had regard to the "consistency between the test results reported by Mr Roberts and Dr Rogers". But those results were not indicative of any decline in ability or performance or of any illness. They showed only a difference between verbal and performance IQs; something which Professor Trimble had said, in evidence that was not challenged, is not indicative of anything. Moreover, even the performance IQ was satisfactory. To rely on Dr Rogers' report as evidence of impairment is hardly consistent with his congratulating Dr Cullen on doing well. The Committee's reasons are opaque as to the use it made or the inferences it made from the consistency to which it referred.
56. Similarly, the Committee did not refer to the written reports of Dr Bradley and Dr Frank.
57. I am left with the Committee's reliance on the evidence from RAF Halton and that from RAF Digby, and on Dr Cullen's behaviour when he gave evidence. The negative evidence from RAF Digby had to be put against Group Captain Kiralfy's letter of 1 December 2003, to which the Committee did not refer. The evidence from Halton was significant and gave rise to legitimate and serious concerns, but it was disputed and in any event had been taken into account by all the medical witnesses. It was not firm evidence of itself on which to reach a conclusion of serious impairment.
58. The evidence from RAF Halton was, however, supported by Dr Cullen's behaviour while giving evidence. Mr Sturman suggests that the Committee failed to take into account the possibility that the stress of the occasion explained that behaviour. I do not think that that is a valid criticism of the Committee: the fact that they did not expressly exclude that explanation does not mean that they did not have it in mind.
59. However, the Committee did not have the benefit of the opinions of either Professor Pitt or of Professor Trimble on Dr Cullen's behaviour as seen by them. If neuropsychological testing itself is unsafe ground for a diagnosis of impairment, the view of the Committee of his behaviour was uncertain ground on which to reject the evidence of Professors Pitt and Trimble and Drs Frank and Bradley.
60. The Committee referred to rule 24(2) of the Procedure Rules. The Committee did not state whether they found that Dr Cullen suffered from a "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"; or whether they had been unable to decide which of those expressions was applicable. Parenthetically, that provision is curious: its effect is to define an expression, namely "seriously impaired by reason of his physical or mental condition" in section 37 of the Medical Act 1983, and it can be valid only if it is a correct exegesis of that statutory expression - which it probably is.
61. The GMC relied upon the fact that the performance of a person suffering from cognitive impairment to vary, and the learning effect that might explain why Dr Cullen performed better on 18 December 2003 with Professor Pitt than he had on 17 December 2003 with Dr Katz. However, that positive variation was taken into account by the medical witnesses; and an ability to learn was, according to the evidence, suggested that there was no impairment.
62. In my judgment, the matters relied upon by the Committee, other than Dr Katz's opinion, gave rise to serious concerns as to whether Dr Cullen suffered from organic impairment. But in the circumstances, given the flaws in Dr Katz's evidence and the eminent and unshaken countervailing medical opinions, it was insufficient for the Committee to base a finding that Dr Cullen's fitness to practise was seriously impaired by reason of a mild cognitive disorder. The error of the Committee, in my judgment, was to conclude that the material before them was sufficient to make a decision in the absence of further medical reports. Further tests would have shown whether there had been a decline in function since the tests carried out by Dr Bradley 10 months earlier, and Mr Roberts some 9 months earlier, or since he had been seen by Dr Katz and Professor Pitt. An EEG or an MRI was also indicated.

Conclusion

63. In my judgment the Committee's reasons for their conclusion were inadequate. I appreciate that the Committee did not include a lawyer. However, with a medical chairman and two medical members, they should have been able to express their medical reasons for rejecting the opinions of Professors Pitt and Trimble. The failure to do so results in a suspicion that there were no good grounds for doing so, and of itself is a ground to interfere with their decision, given that there was no basis for rejecting those opinions that was so obvious that it did not require to be expressed.
64. In addition, I do not think that the evidence before the Committee justified their conclusion in the absence of further medical reports.
65. The decision of the Committee will be quashed and the case remitted for hearing to a differently constituted Committee. I hope that that Committee and Dr Cullen and his advisers will bear in mind my suggestion that further medical reports are appropriate in this case.

Other points

66. It emerged during the course of argument that it is the practise of the Committee to exclude medical expert witnesses while evidence is being given by others, presumably by reason of the provisions of rule 17 of the Procedure Rules. The result is that the procedure appears to be akin to that of the Criminal Courts. Furthermore, as required by the Procedure Rules, the GMC presents its case, including calling its medical evidence, before the practitioner presents his evidence. The result is that the practitioner's medical experts do not hear and are unable to comment on the oral evidence of the GMC's experts, which may differ from their written reports. Conversely, the medical experts of the GMC do not have the opportunity to observe or to comment on the factual evidence called by the practitioner, and in particular on his own evidence.
67. The proceedings of the Health Committee are not criminal proceedings. They are regulatory. They do not involve any charge of misconduct on the part of the practitioner, but an inquiry into the state of his health and his ability to practise. In my judgment, there is much to be said for the Committee adopting what is now the normal course of proceedings in civil proceedings, in which the factual evidence is heard first, in the presence of the experts if they are available, and both parties then call their oral expert evidence. This would have the considerable advantage that the medical experts would be able to comment on the behaviour of the practitioner when he gave his evidence, and be able to respond to the Committee's questions concerning his evidence. There is no good reason why medical expert witnesses, whose good faith is not in issue, should be excluded from the hearing. It was, to say the least, unfortunate that in the present case neither Professor Trimble nor Professor Pitt, nor Dr Katz, was able to comment on Dr Cullen's evidence, on which the Committee placed reliance. Indeed, the Committee did not put to Mr Sturman the conclusions they proposed to draw from Dr Cullen's evidence, as they could and I think they should have done, although that is not the subject of complaint.
Appendix: the decision of the Health Committee

The Committee … have carefully considered all the information presented to them, including medical reports, the submissions made by Miss Sibson, Counsel, on behalf of the General Medical Council, and those made on your behalf by Mr Sturman, Counsel, as well as your own evidence. they have also had regard to the oral evidence of Professor Pitt and Dr Katz, the two medical examiners commissioned by the GMC, and the oral evidence of Professor Trimble, one of the medical examiners nominated on your behalf.

The Committee have noted the detailed referral letter dated 19 September 2003 from Squadron Leader R D J Withnall to the GMC that raised concerns about your health and fitness to practise whilst you were working as a locum at RAF Halton during the period 1 – 8 September 2003. Included with the referral letter was a report from Squadron Leader Abbott outlining similar concerns whilst you were working as a locum at RAF Digby between June – August 2003. The Committee note that both of these episodes led to the termination of your employment. They have had regard to your written response and your evidence here today regarding these concerns.

The Committee have carefully considered over the last two days the different opinions of the medical examiners regarding your fitness to practise. In general Dr Bradley, Professor Trimble and Dr Frank, the medical examiners nominated on your behalf, found no evidence of a psychiatric disorder or cognitive impairment and concluded that you were safe to practise without any restrictions on your registration. Dr Bradley qualified his view in his second report dated 15 April 2004 by stating that you "could probably continue to practise reasonably effectively without endangering [your] patients without formal supervision.

The Committee have considered carefully the oral evidence of the three medical examiners. When Professor Pitt examined you in December 2003, he found no evidence of a mental disorder and you showed no significant cognitive impairment. However, in February 2004 he modified his earlier opinion and considered that the label "mild cognitive disorder ICD F06.6 or age-associated memory impairment" might possibly be applied. He formed this view, having regard to the findings of Mr Roberts' neuropsychological assessment that took place on 16 January 2004 which provided evidence of your reduced ability in performance related tests. In the light of Dr Rogers report of March 2004 and Professor Trimble's report of June 2004, both presented to him during the course of the hearing, Professor Pitt reverted to his original opinion and concluded that your fitness to practise is not seriously impaired.

In his evidence today, Professor Trimble maintains that he can find no evidence of any mental disorder or neurological disorder that might suggest an impairment of your ability to practise, or evidence of a memory decline.

Dr Katz's view is that the tests she performed on 17 December 2003 could be indicative that you may have frontal lobe dysfunction or generalised cognitive impairment that may be indicative of a dementing process. She suggested further testing be undertaken. In her later report to the GMC, dated 18 February 2004, she noted that the neuropsychological assessment undertaken by Mr Roberts in January 2004 highlighted a significant difference between your verbal and performance IQ. She considered that the results were suggestive of some organic impairment, possibly due to early dementing illness. Dr Katz, in her oral evidence, based her conclusions on the matters that led to your referral to the GMC, her own clinical examination and the results of neuropsychological assessment. She considered that your practise would require supervision. She maintained her opinion in the face of close cross-examination by Mr Sturman. The Committee have found Dr Katz's evidence to be credible, with clear reasons for reaching her opinion.

The Committee have borne in mind the evidence of several of the witnesses that the neuropsychological tests are not diagnostic. However, they have had regard to the consistency between the tests results reported by Mr Roberts and Dr Rogers.

The Committee have also had regard to your own evidence. They are concerned that you appeared not to appreciate the significance of some of the questions asked, you were uncertain about key information, such as the date of your retirement, and you appeared to lack insight into the concerns that have been raised by the initial referral.

The Committee first considered very carefully whether to adjourn proceedings in order to obtain further medical reports. They are satisfied that they have sufficient information before them to make a decision.

Having regard to the matters that were raised by the initial referral letter to the GMC concerning events at RAF Halton and Digby, Dr Katz's conclusions, the findings of the two neuropsychological assessments and your own evidence, the Committee have judge your fitness to practise to be seriously impaired by reason of a condition classified in the ICD-10 Classification of Disorders as F06.7 mild cognitive disorder.

In reaching this decision the Committee have had regard to rule 24(2) of their procedure rules. That rule indicates that the Committee are 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.