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 WC2
		18th December 2006

1. MR JUSTICE SULLIVAN: This is an appeal against a decision of the respondent's Fitness to Practise Panel on 20th February 2006 to impose conditions on the appellant's registration for a further period of 12 months.
2. The history of the matter begins in May 2003, when the appellant attended a GMC "roadshow" at the Royal College of Physicians. He sat next to a colleague, who was sufficiently concerned to write to the GMC, saying that it might be the case that the appellant was showing "what might have been early signs of a dementia". That set various investigations in train. A consultant psychiatrist, Dr Livingston, expressed the view in September 2003 that there "might be dementia due to Pick's disease or for another reason." Dr Livingston was unable to tell whether the problem was progressive and suggested further tests.
3. The matter was referred to a forensic psychiatrist, Dr Ndegwa, who concluded that the appellant was not suffering from a mental illness. But so far as cognitive function was concerned, he considered that more detailed examination in the form of a neuropsychological test was required.
4. Another consultant psychiatrist, Dr Savla, expressed the view, which he has consistently expressed ever since, that there was no evidence of dementia, no evidence of any mental disorder whatsoever, and no evidence that the appellant was suffering from any mental disorder or has any other behavioural problems which would in any way impair his ability to function as a surgeon or a doctor.
5. The matter went before the GMC's Health Committee in March 2004, and they adjourned the matter for a neuropsychological assessment to be arranged. The assessment was arranged and was carried out by Dr Longwill on 13th May 2004. She concluded that:

"Overall, the balance of evidence from the neuropsychological assessment presented suggests that [the appellant] does suffer from a degree of cognitive impairment which may be linked to some underlying neurological disease."

It was her opinion that the neurological assessment findings raised:

"... significant areas of concern regarding his continued ability to function effectively as a surgeon.

Further investigations are recommended to establish the cause and future prognosis of this likely decline in cognitive function."

6. The Committee met again, and by letter dated 8th July 2004 explained that it had decided that it was appropriate to impose conditions. The letter said in part:

"The Committee share the concerns expressed by Dr Livingston and Dr Longwill. Based on all the evidence before the Committee today, they have judged that your fitness to practise is seriously impaired by reason of cognitive impairment."

The conditions required the appellant to undertake a further neuropsychological assessment and a neurological assessment by medical examiners chosen by the Committee.

7. When the matter came back before the Committee on 3rd August 2005, it noted that the appellant had not had those assessments and so it again judged that his fitness to practise was seriously impaired by reason of cognitive impairment, and the conditions were imposed for, in effect, another period of six months.
8. Shortly after the Committee considered the matter on 2nd August 2005, a medical report was obtained from Professor Trimble, dated 17th August 2005. That report said, amongst other things:

"Several other people have seen him, and it is clear that he does have cognitive impairments, but the question is whether these are impaired with regards to his previous state, or whether they are impaired only with regards to population norms. So far there is no evidence that this man is suffering from a progressive dementia. It has to be recalled that these events have been going on for two years now, and if he had a progressive dementia such as a frontal lobe dementia then this would become much more readily apparent. However, for reasons that I am unclear about, a number of the investigations which should have been carried out seem not to have [been] done or the results not made available to me. However, if it is suspected that he has a dementia then cognitive testing should be repeated by a competent neuropsychologist in order to compare the results now with those already carried out. Again if there is a suggestion of a progressive problem it would come to light through those mechanisms. Secondly, he should have an MRI scan ..."

9. An examination was carried out in August 2005 at the National Hospital for Neurology & Neurosurgery, Dementia Research Centre, and a report from Dr Warren, consultant neurologist, was prepared. That concluded that in the neuropsychometry test, verbal IQ of 104, performance IQ of 80:

"It was concluded that there was moderate intellectual under-functioning only within the performance scale of the WAIS-R, in addition to word retrieval difficulties, weak performance on executive tests and reduced speed of cognition. Memory functions were satisfactory. The profile was interpreted as consistent with a mild to moderate degree of cognitive impairment predominantly implicating subcortical regions and possibly mildly involving anterior regions."

The report concluded:

"Based on our assessments of Mr Yanah, we have been unable to arrive at a definite neurological or psychiatric diagnosis. In particular, we considered it appropriate to be cautious in the interpretation of behavioural features such as persecutory beliefs or loquaciousness in this context. At present Mr Yanah has been characterised as having a mild frontal dysexecutive syndrome of uncertain basis. It will be important that Mr Yanah is followed with serial psychometry and volumetric brain imaging at suitable intervals (generally at least 12 months), and this may include registration of serial MRIs in order to quantify any progressive atrophy. ... ."

10. There was also a report from Dr Ahuja, a clinical neuropsychologist, that concluded:

"Dr Yanah is currently functioning in the good average range on the verbal scale and just within the low average range on the performance scale of the WAIS-R. On an additional relatively culture fair test of non-verbal abstract reasoning, he scored within the average range. These scores suggest a moderate intellectual underfunctioning only within the performance scale of the WAIS-R. Other main findings of note include some word retrieval difficulties, weak performance on executive tests and significantly reduced speed of cognition. In particular, memory functions are satisfactory. Altogether, this neuropsychological profile would be consistent with a mild to moderate degree of cognitive impairment predominantly implicating subcortical regions, possible even mildly involving the anterior region."

11. Although those reports had been obtained, it would appear that, for reasons which are not at all clear, they were not sent to the examiners appointed by the Panel. Dr Bradley, another consultant psychiatrist, said that on the basis of his clinical examination, on 10th January 2006, he was unable to make a firm diagnosis of cognitive impairment. He had looked at the 2004 results, but said that he thought it was essential that they should be repeated.
12. There was in addition a report by Dr Clarke, a consultant neurologist. He too recommended in February 2006 that:

"If the question of cognitive function remains an issue I would recommend that a psychometric assessment is carried out in a university department experienced in this field and that the assessment addresses particularly cognitive tests rather than possible psychological issues."

He then suggested the National Hospital for Neurology and Neurosurgery.

13. There was a further report from Dr Savla, in which he in essence adhered to his view that, amongst other things, there was no evidence of any cognitive impairment or any other clinical symptoms of depression, anxiety, or any decline in social functioning or any evidence of personality dysfunction.
14. The medical examiners chosen on behalf of the Panel, Dr Evans, a consultant psychiatrist, and a further report from Dr Ndegwa. They, it seems, both understood that further assessments had been carried out, but they had not been provide with copies of them. They observed that there was no evidence of any cognitive decline, in Dr Evans' words. In Dr Ndegwa's words, there were no reports of any deterioration in his mental health or cognitive functioning. Dr Ndegwa again said that he had not elicited any evidence of a mental illness, and his cognitive functioning appeared to be similar to that on the two previous occasions that Dr Ndegwa had seen him. He said that a final conclusion should depend on the totality of the information available.
15. The Committee at the hearing had the assistance of a specialist health adviser, Prof Bluglass, who is a professor of psychiatry. This was one of those cases where the Committee did not hear any oral evidence from the writers of any of the reports, or indeed from the appellant himself. It did, however, have the benefit of its specialist adviser's comments on the reports. The specialist adviser said that it was a complicated case.
16. Mr Thomas specifically draws attention to the fact that the specialist adviser said that it was not his task to say anything about the doctor's fitness to practise, but to try and help in evaluating the wealth of reports and complicated evidence that the Panel had received. He went on to say:

"The question really is whether Mr Yanah has a condition which is progressive and whether he has a dementia at all, and how to evaluate the abnormalities which have been brought forward in the reports."

17. To cut a long story short, the Specialist Adviser said that in effect there was not any evidence of dementia and there was not any evidence of any progressive condition:

"Having said all that, I suggest that none of the people who have reported on him have found evidence of significant cognitive impairment and there is no evidence of a progressive disorder of a deteriorating kind since he was first in conversation at the conference, as the Committee has heard, with Dr Hilson. The many reports, as Dr Yanah's counsel has said, do not show evidence of deterioration of cognitive impairment."

He then went on to say:

"I do not think the reports, taken as a whole, demonstrate to you a disorder of significance. I think that is what I really want to emphasise."

18. Mr Evans of counsel, who appeared on behalf of the GMC, then raised the matter of the August 2005 assessments and the extent to which they tied in with the earlier assessment by Dr Longwill, and the specialist adviser responded:

"I think it is probably difficult for the Committee, but it has to take into account what Dr Ndegwa said in his last report about the totality of the evidence and perhaps the significance and specificity of the psychological tests, how reliable they are taking everything into account. I think they have to be taken into account with all the other evidence but they are not specific enough to say, 'Oh well, that leads us to a clear conclusion'. I think you have to look at the totality of the evidence as Dr Ndegwa rightly says. Although this psychologist says this is consistent with a mild to moderate degree, my recommendation to you is that it is his performance and his functioning that is most important here. Dementia is a clinical diagnosis; it is assisted by psychological tests and the other assessments which have been made ... However, I suggest to you that it would be dangerous to rely just on psychological reports; they have to be taken into account with everything else."

There were then further questions put to the specialist adviser.

19. Mr Evans submitted:

"Of course while the issue of deterioration is significant if the diagnosis is one of dementia that might not be determinative on the question of fitness to practise because there remains, certainly on the most recent reports obtained, evidence of cognitive impairment whether it is to a mild or to a moderate degree. That, in my submission, would be something which the Panel would have to consider in assessing the position now."

20. One of the members of the Panel referred to what had been said by Professor Trimble, that it was clear that the appellant did have cognitive impairments, but the question was, "whether these are impaired with regards to his previous state, or whether they are impaired only with regards to population norms", and said that he thought he understood what that meant, but would be comforted if the specialist adviser would "gloss" it for him. The specialist adviser said:

"The way I interpret this remark is that on the one hand there may be a variant with regard to the normal population results to testing or he has an impairment which is a change with regard to his own performance. He has left that open really. He says that the question is whether his cognitive impairments are to be taken as variants of his previous state or just a variant within population norms as, for instance, there are a range of results to intelligence testing which come within the normal range. Is this within the normal range at one end of it or is it a change with regard to his state previously? The assessments as I read them, taking it as a whole, is that there have not been changes with regard to his own performance, they are fairly static; over the three and a half years they have not changed, there has not been deterioration. I do not know the answer to this but it would appear to be within population norms. I think that is what he is talking about as far as I can assess it."

21. The Panel's determination firstly set out the history of the matter, the first hearing before the Health Committee in July 2004 and the resumed hearing in August 2005. It is said that the Panel had taken into account the advice of the Specialist Health Adviser and listed the medical reports which were before it. The Panel's reasoning continues:

"The panel has noted from the reports that there is no evidence that you are suffering from progressive dementia, and there is no evidence of any progressive or deteriorating condition. Equally, there is no evidence of any improvement.

On the question of cognitive impairment, the panel notes that Dr Savla states there is 'no evidence'; Dr Bradley finds there is no 'gross evidence'; Dr Clarke has no specific view other than that he does not believe a further cognitive assessment is necessary; Dr Evans and Dr Ndegwa agree that there did not appear to be any deterioration in cognitive functioning. By contrast, Professor Trimble states that 'It is clear that he does have cognitive impairments but the question is whether these are impaired with regard to his previous state, or whether they are impaired only with regard to population norms'. However, all of these reports rely only on clinical assessments without the benefit of results of the neuropsychometry tests carried out in the University College London Hospitals as reported by Dr Warren and Dr Ahuja. These concluded that your 'neuropsychological profile would be consistent with a mild to moderate degree of cognitive impairment'. These results are consistent with the neuropsychological testing in June 2004.

The specialist advice to the panel concentrated on the absence of dementia and any progressive deterioration. The panel agrees with this but it found the advice as to the presence or absence of cognitive impairment inconsistent.

Taking all the reports together, the panel is satisfied that there is evidence that your Fitness to Practise is impaired by reason of cognitive impairment. In reaching its decision, the panel has had regard to rule 17(6) of its procedural rules. This rule indicates that the panel may take into account the practitioner's current physical or mental condition, any continuing or episodic conditions suffered by the practitioner, and a condition suffered by the practitioner which, although currently in remission, may be expected to cause a recurrence of impairment of the practitioner's fitness to practise."

The Panel then invited submissions as to what the appropriate sanction should be.

22. Although a number of authorities were cited, there is for all practical purposes no real dispute between the parties as to the approach to be adopted by the court in considering these appeals. As Collins J said in Meadow v General Medical Council [2006] EWHC 146 (Admin):

"An appeal under s.40 of the Medical Act 1983 is not limited to a review - see CPR 52.11 and the Practice Direction at Paragraph 22. However, this court will not interfere unless persuaded that a decision, whether in respect of a finding of misconduct or the sanction imposed, is clearly wrong. I need not cite the various authorities to which I have been referred. Suffice it to say that that is the test which is applied. I prefer to place no further gloss upon it."

23. In the Court of Appeal ([2006] EWCA Civ 1390) the Master of the Rolls, having discussed the various authorities, said in paragraph 125 that he could see:

"... no basis for faulting Collins J's simple expression of the test, save that I doubt whether the adverbial emphasis of 'clearly' adds anything logically or legally to an appellate court's characterisation of the decision below as 'wrong'."

24. In his skeleton argument, Mr Thomas drew attention to a number of authorities which demonstrate that when considering appeals from specialist tribunals, such as the Panel in this case, the court "should approach such cases with an appropriate degree of 'caution'." There is no doubt that the court should pay particular regard to the expertise of any tribunal. The tribunal in the present case consisted of five members, two of whom had medical qualifications, and the lay members also had some experience and/or connection with the medical field. I therefore approach this case with the appropriate degree of deference, but I bear in mind that this was a case where the Panel did not have the advantage of hearing oral evidence. As I have mentioned, they simply looked at the reports and the only oral evidence they had was the assistance they received from their specialist medical adviser.
25. In normal circumstances I would have considered that the degree of deference to be accorded to a panel of the GMC that is considering fitness to practise on health grounds should be accorded a considerable degree of respect. That is because in matters relating to health, perhaps rather more than in matters relating to professional conduct or sanctions, the views of a tribunal with a medical membership command particular respect. However, the other side of that coin, as fairly pointed out by Ms Rahman on behalf of the appellant, is that particular respect should also be accorded to the advice given to the Panel by its own specialist health adviser. While the ultimate decision is for the Panel, and it is entitled to disagree with its specialist health adviser and to reach a different conclusion, one would expect to see very careful reasoning in order to justify such a conclusion. In saying that, I do not overlook the dicta relating to the adequacy of reasons in a number of cases (including Cullen v GMC [2005] EWHC 353 (Admin)) which make it clear that relatively brief reasons may well be sufficient. What is adequate by way of reasoning is entirely dependent on the circumstances of the particular case. As a matter of common sense, briefer reasoning is required if the Panel is simply agreeing with its own specialist adviser than if it is apparently disagreeing with its own specialist adviser.
26. Trying to draw the threads together in this case, bearing in mind that there are a huge number of reports, it seems to me that the position boiled down to this. Firstly, the original concerns had been that there might be either progressive dementia (Dr Livingston) and/or progressive cognitive impairment (Dr Longwill). It will be recalled that she thought that there would be a likely decline in cognitive function. Those concerns were still very much live when the earlier Committee decisions were made in July 2004 and August 2005.
27. By the time that the matter came before the Panel in 2006, firstly, the test was somewhat different, in that the question was no longer whether the appellant's fitness to practise was seriously impaired but whether it was impaired following the amendments to the Medical Act which took effect in November 2004. But of greater significance for the purposes of the present case, it was really common ground that there was no evidence of any deteriorating condition. Thus the contention that there might be dementia had effectively been ruled out, because it was common ground that if that had been the correct diagnosis there would have been evidence by then of some deterioration. That left cognitive impairment, as to which it was common ground there was no evidence of any deterioration. The Committee plainly accepted those propositions (see the reasons which I have set out above).
28. The Committee's reference to the specialist advice it had received is brief in the extreme. It said that the specialist adviser had "concentrated on the absence of dementia and any progressive deterioration" and expressly agreed with that. The sentence continues, "but it found the advice as to the presence or absence of cognitive impairment inconsistent." It is not entirely clear whether the Panel was there saying that its specialist health adviser's evidence was inconsistent, or that the evidence about cognitive impairment generally was inconsistent.
29. The specialist adviser's evidence, read fairly as a whole, was consistent, in my judgment, and was to the effect that not merely was there no evidence of any deterioration of cognitive impairment, there was no evidence of significant cognitive impairment. Although Mr Thomas drew my attention to one sentence in which the words "there is no evidence of cognitive impairment" appear, that is in the context of a paragraph in which the specialist adviser makes it plain that what he is saying is, "I do not think the reports taken as a whole demonstrate to you a disorder of significance. That is what I really want to emphasise." That theme runs throughout the specialist adviser's advice to the Panel. Whilst there was some evidence of cognitive impairment, it was not significant.
30. On the basis that the Panel was looking at the evidence as a whole, then it is perfectly fair to say that the advice before them as to the presence or absence of cognitive impairment was inconsistent, but the inconsistency was a very limited one. Some of those who reported, for example Dr Savla, were saying categorically that there was no evidence of cognitive impairment. Others, including for example Professor Trimble, were clear that there was cognitive impairment. To the extent that anyone had sought to quantify the degree of impairment, the most recent information put it at mild to moderate cognitive impairment. Thus in effect the inconsistency was between those who said that really there was no impairment and those who said that there was mild to moderate cognitive impairment. The specialist adviser's advice that no one was saying that there was significant cognitive impairment would appear to be correct. It will be recalled that the concerns expressed by Drs Livingston and Longwill at an early stage had been expressed upon the basis that deterioration was likely. By February 2006 it was common ground that that was not the position.
31. Thus it seems to me there were two questions for the Panel to consider. Firstly, was there mild to moderate cognitive impairment as opposed to no cognitive impairment whatsoever and, secondly, how did this mild to moderate cognitive impairment affect the appellant's performance as a surgeon? That second question was particularly important, given that it was accepted that there was no evidence of deterioration and given that this was a case where the chain of events had been commenced, not by a complaint by any patient that they had suffered, but by a concern expressed by a professional colleague. This is a case where no concerns had been expressed about the appellant's performance or functioning as a surgeon. If there had been no deterioration in his cognitive function, then the obvious question was: had he been able to function adequately as a surgeon before and, if no deterioration, would he continue to be able to function adequately as a surgeon, notwithstanding the mild to moderate cognitive impairment? The specialist adviser said in terms to the Panel that they should look at "his performance and his functioning", and said "that is most important here".
32. It seems to me that the Panel has in essence sidestepped the latter question. It was entitled to conclude on the evidence that, in particular in the light of the most recent neuropsychological reports, there was a mild to moderate degree of cognitive impairment. But the further question was whether that meant that the appellant's fitness to practise was impaired by reason of that cognitive impairment, as I say bearing in mind in particular the facts that (a) there had been no earlier complaints about his fitness to practise, and (b) there was no evidence of any deterioration.
33. While I readily accept that the reasoning in decisions of this kind must be considered in a common sense way and the reasons must be looked at as a whole, it does seem to me that the very cursory way in which the Panel appear to have put the advice of their specialist medical adviser to one side is unfortunate in the context of this case. Matters have moved on considerably since the earlier concerns about dementia and a possible deteriorating condition had been raised, and there is not an adequate response to those changed circumstances in terms of an assessment of the extent to which the degree of cognitive impairment found by the Panel really did impair the appellant's ability to practise.
34. For these reasons, I am satisfied that the reasoning in the Panel's determination is not adequate. There is a further concern. Having imposed conditions on the appellant's registration, the Panel directed that before the case was next reviewed the appellant would be required to submit to medical examination by two independent psychiatrists, including a requirement that the full range of neuropsychological and neurological investigations undertaken at the National Hospital and as recorded by Dr Warren are repeated, and it required that the results of those tests were made available to the medical examiners appointed on behalf of the Panel. It is most unfortunate that the Panel was placed in the position of those tests having been done by Dr Warren, but apparently not having been supplied to those who were asked to prepare reports for the Panel. It is plain, therefore, that the information, even though there were a very large number of reports before the Panel, critically those writing the reports had not had sight of the most recent information. Had oral evidence been called, that might have been of no particular consequence, because the witnesses could have been asked for their reactions to the reports Dr Warren and Dr Ahuja. Since the matter was simply looked at on the papers, that was not possible and the only person who was able to assimilate all of the information was the Panel's specialist health adviser, Professor Bluglass. That is why, on the particular facts of this case, it was essential, if the Panel was going to disagree with their specialist adviser, that they set out their reasons with some care. I repeat, this was a case where the Panel's own specialist adviser had said in terms that "the reports taken as a whole did not demonstrate a [cognitive] disorder of significance". Simply to say that the Panel found the advice as to the presence or absence of cognitive impairment inconsistent and then to go straight to the conclusion that there was evidence that the appellant's fitness to practise was impaired by reason of cognitive impairment was not, in all the circumstances of this case, adequate and proper reasoning.
35. For these reasons, this appeal must be allowed. But in view of the fact that I have merely concluded that the Panel had not properly grappled with the vital question, "in the absence of any deterioration what are the implications of this mild to moderate cognitive impairment for the appellant's fitness to practise as a surgeon?", it would not be right simply to allow the appeal and to allow the appellant to practise without conditions. The proper course is to remit the matter back for redetermination to a differently constituted Panel, as was the course adopted in the Cullen case by Stanley Burnton J.
36. Yes, any more for any more?
37. MS RAHMAN: My Lord, yes, I ask for my costs. I am unaware whether a statement of costs has been served upon the court. Do you have a copy, my Lord?
38. MR JUSTICE SULLIVAN: I do not think I do, actually, no.
39. MS RAHMAN: I am aware that the respondents have a copy. It was only sent....
40. MR JUSTICE SULLIVAN: Is there any dispute about the principle or the amount?
41. MR THOMAS: No, my Lord. No objection in principle, my Lord. I have not seen the amount.
42. MR JUSTICE SULLIVAN: You have not been served either. Shall I have a copy? (Handed) Thank you very much. (Pause)
43. MR THOMAS: My Lord, I was just doing a comparison between our costs schedule.
44. MR JUSTICE SULLIVAN: I do not think I have received yours either.
45. MR THOMAS: Oh, I thought that had been served.
46. MR JUSTICE SULLIVAN: No, I am afraid I did not have any costs schedules, I do not believe so anyway, not unless they were incorporated somewhere in the bundle, which I do not think they were.
47. MR THOMAS: This is not where the two costs schedules are chalk and cheese, so I think the comparison will be limited, but I will hand it in in any event. (Handed)
48. MR JUSTICE SULLIVAN: Thank you. No, not really are they.
49. MR THOMAS: My Lord, they are in the same ballpark. We of course are the lower figure.
50. MR JUSTICE SULLIVAN: Yes.
51. MR THOMAS: My Lord, I think the only comment I can make, with considerable hesitation, is that my learned friend's fees, for both advice before the hearing and the fee for the hearing, taken together, are somewhat more than may be considered entirely necessary and proportionate. My Lord, I make the submission briefly.
52. MR JUSTICE SULLIVAN: Yes. I appreciate counsel is always reluctant. Sorry, the advice, I see, I am so sorry, I have the point. Yes. On the other hand, I suppose it could be said swings and roundabouts. The more carefully you advise beforehand, the less you have to do when you actually get there.
53. MR THOMAS: Yes.
54. MR JUSTICE SULLIVAN: Bearing in mind that the claimant has the carriage of the case, this does not seem to me to be particularly out of kilter with what one would expect. Thank you very much.
55. I do not need any further submissions. The appeal is allowed. The respondent is to pay the appellant's costs, those costs to be summarily assessed in the sum of £5,529.50. Thank you. Anything else? Good, thank you.