England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		21 November 2007

1. MR JUSTICE BURTON: This has been the hearing of an appeal under Section 40 of the Medical Act 1983 by Dr Krishna Lal Gupta, for whom Mr Jeremy Hyam of counsel has appeared, from a decision of the Fitness to Practise Panel (Performance) of the General Medical Council. The General Medical Council has thus been a respondent to this appeal and has been represented by Mr Robert Englehart QC. The decision so appealed against was made by reference to Section 35C (2) (a) of the 1983 Act, whereby a person's fitness to practise shall be regarded as impaired for the purposes of the Act by reason of (b), deficient professional performance.
2. In order to assist in the determination of that question, the panel, which is of course a specialist panel dedicated to decisions of that kind, is in addition assisted and was assisted on this occasion in two ways pursuant to the provisions under the General Medical Council (Fitness to Practise) Rules Order of Council 2004. First, the General Medical Council can, and did by its registrar, appoint a panel of medical and lay performance assessors for the purpose of carrying out performance assessments by reference to Regulation 3 (1). Under Regulation 7 (3), the registrar may direct that assessment of a practitioner's performance be carried out in accordance with that schedule.
3. Second, there can be advice sought from a specialist performance adviser pursuant to Regulation 3 (6). Such advice must be given or repeated in the presence of the parties in attendance at the hearing.
4. In this case the assessment report was produced by such a panel chaired by Dr Clarke, who gave oral evidence at the panel hearing. The specialist performance adviser was Dr Harker who gave the advice referred to in Regulation 3 (6) at the hearing.
5. Concerns were first raised about the clinical abilities of the appellant in about 2000. Between 2000 and 2004 a number of assessments were carried out. There was supervised training in 2002 and 2003. The appellant was contingently removed from the Medical List in December 2003. He had supervised sessions of training in July 2004 at Berry Lane Medical Centre. He failed an assessment at Leicester Medical School in October 2004. On 9 November 2004 there was a determination by the Preston Primary Care Trust Performance Panel to hold a hearing to consider removing his name from the performance list. There followed a hearing, and such a decision to remove his name was made on 25 January 2005. This means that he has not practised in ordinary form as a doctor since November 2004 when Preston Primary Care Trust took that decision, and had not practised therefore for over a year when the assessment was carried out under Dr Clarke's chairmanship which eventually led to the assessment report which was put before the panel. The assessment report was finalised on 25 January 2006.
6. The Fitness to Practise Panel hearing was between 26 and 29 March 2007. No evidence was given by the appellant himself, but he was represented, as he has been before me, by Mr Hyam. The assessment report of 25 January 2006 was before the panel and was fully considered by them. Dr Clarke gave evidence orally. The special performance adviser Dr Harker gave oral advice, as I have described.
7. The assessment report was carried out by reference to the Performance Assessor's Handbook of the General Medical Council. There is a section - paragraph 14 - of that handbook which has been put before me, headed up Report Writing. In paragraph 2 the assessment team are directed that opinions expressed in the report should be supported by "triangulation", ie, evidence from at least three different sources. As will become apparent, that means that no conclusion can be reached which is not supported by "triangulation".
8. The material balance of paragraph 14 deals with assessment scale definitions that are to be used in the report:

"14

.....

Assessment scale definitions

3 When evidence has been collected it should be compared to the defined criteria and a 'grade' awarded.

The grading system is:

A - Acceptable

C - Cause for concern

U - Unacceptable

4 This system is used both for assessments of very specific items (i.e. specific criteria) and also for your overall judgment of the practitioner's performance against the categories in Good Medical Practice. Assessors should use the grades 'A' and 'U' where possible.

5 For individual criteria:

a. Acceptable performance is performance that is consistent with the performance described in Good Medical Practice.

b. Unacceptable performance is performance that clearly departs from the performance described in Good Medical Practice.

c. Cause for concern occurs when there is evidence of performance that causes concern but it is not sufficient to put it in the unacceptable category.

6 For your overall judgments in the report for each category of GMP:

a. Using the categories in Good Medical Practice:

i Unacceptable indicates that there is evidence of repeated or persistent failure to comply with the professional standards appropriate to the work being done by the practitioner, particularly where this places patients or members of the public in jeopardy (i.e. deficient professional performance). This grade should be entered either if you have evidence that the criteria for an acceptable level of performance are regularly NOT being met, OR if negative criteria are being met.

ii Acceptable means that the evidence demonstrates that the practitioner's performance is consistently above the standard described above. This grade should only be entered if you are satisfied that all or almost all of the criteria are satisfied in all or almost all of the examples that you have seen or heard reported.

iii Cause for concern means that there is evidence that suggests that the performance may not be acceptable but that there is not sufficient evidence to suggest deficient professional performance. This grade should be entered if you have evidence of some instances of unacceptable performance but which, in the view of the assessing team, do not amount overall to unacceptable performance. The reasons for using this grade, rather than 'unacceptable', for this aspect of performance should be described."

9. What could loosely be called a charge sheet, described as containing allegations, was laid before the Fitness to Practise Panel Council. But having described it as a charge sheet, it should be made clear, as Mr Englehart has rightly submitted, that this is and was not of course either a disciplinary hearing or certainly is not a criminal hearing. This was a hearing which was dedicated to assessing whether it was safe, so far as members of the public are concerned, for the doctor to continue to practise, at any rate on an unconditional or unlimited basis. I shall return to that question later.
10. The allegations, as they are firmly described by the panel secretary at page 34 G of the bundle, were set out as follows (paragraphs 1 to 11 at pages 34 to 36 inclusive):

"1 You worked as a general practitioner for Preston Primary Care Trust from June 2001 until 9 November 2004.

2 By letter dated 3 February 2005, Preston Primary Care Trust notified the General Medical Council that your name had been removed from its primary medical performers' list.

3 By letter dated 10 March 2005, Preston Primary Care Trust provided further documentation to the GMC regarding your professional performance.

4 By letter dated 8 July 2005, the General Medical Council invited you to participate in an assessment of your performance.

5 By letter dated 25 July 2005 you agreed to participate in an assessment of your performance.

6 An assessment team assessed your performance in a peer review, which took place on 27, 28 and 29 November 2005, and in tests of your competence that took place on 5 December 2005.

7 The assessment team produced a report dated 25 January 2006, the principal features of which appear in paragraphs 8 to 11 below.

8 The assessment team found that your professional performance was unacceptable in the following areas:

a. Providing or arranging treatment.

b. Record keeping.

9 The assessment team found that your professional performance was cause for concern in the following areas:

a. Assessment of patient's condition.

b. Providing or arranging investigations.

c. Working within the limits of competence.

d. Paying due regard to efficacy and use of resources.

e. Educational activities.

f. Constructive participation in audit assessment and appraisal.

g. Communication with patients.

h. Arranging cover, delegation and referral.

i. Working within laws and regulations.

10 In the tests of your competence:

a. You scored 70.5% in the knowledge test.

b. The minimum acceptable score for the knowledge test was 68.68%.

c. You scored 52% in the simulated surgery test.

d. The minimum acceptable score in the simulated surgery was 50%.

e. In the objective structured clinical examination test you scored 62%.

f. The minimum acceptable score in the objective structured clinical examination test was 70%.

g. The assessment team concluded that your results in the tests of competence confirmed that your performance as a general practitioner is deficient.

11 The assessment team concluded that the standard of your professional performance had been deficient."

11. The last allegation was number 12:

"The conclusions reached by the assessment team referred to in paragraphs 8 to 11 above were appropriate.

And that by reason of the matters set out above your fitness to practise is impaired because of your deficient professional performance."

That last allegation was not admitted by the appellant. All the previous 11 were admitted for purposes of the panel hearing.

12. However the tribunal went on to conclude at the end of stage 1 of the hearing that allegation 12 was found proved and there has been no appeal against that finding.
13. I should add by way of commentary on the 11 allegations to which I have referred that, so far as allegation 9 is concerned, the assessors' report had found what is there referred to as (i) not to be 'cause for concern' within allegation 9 but to have been 'unacceptable', and thus to have included it with those in allegation 8. But, Mr Clarke explained, on reconsideration, the assessors' team had not concluded that they were able to be satisfied on the basis of "triangulation" as to (i) being 'unacceptable'. Consequently it was shifted and re-rated into 'cause for concern' and included in paragraph 9, not in paragraph 8.
14. Secondly, so far as the tests are concerned referred to in allegation 10, as can be seen from the recital of the facts, the appellant had failed the third test, scoring 62 per cent rather than the minimum acceptable score of 70 per cent. As to the other two - the knowledge test and the simulated surgery test - on the face of it, there was a pass, 70.5 per cent in the knowledge test being just over the minimum acceptable score of 68.68 per cent, and 52 per cent in the simulated surgery test being just over the minimum acceptable score of 50 per cent.
15. A graph was produced in the course of the hearing by Dr Clarke which produced, in graphic form, the performance of 115 randomly selected GPs, from which it could be seen that Dr Gupta was in the bottom 9 of those 115, the vast majority scoring well over the minimum acceptable score.
16. The assessment report sets out at its conclusion what was called the assessment team's formal opinion dated 25 January 2006. It begins:

"The assessment team has considered the following questions. In each case, their answers set out the reasons for their opinion."

It reads thereafter as follows:

"(a) Has the standard of the practitioner's professional performance been deficient?

YES.

(b) Is the standard of the practitioner's professional performance likely to be improved by remedial action?

YES.

(c) Should the practitioner limit his professional practice, or cease professional practice?

YES. The Doctor should limit his professional practice.

(d) Does no further action need to be taken on the Report?

NO

Based on the above the panel must give:

(a) an opinion as to whether the practitioner is fit to practise either generally or on a limited basis; and

Dr Gupta's professional practice should be limited to working only under the close supervision of a qualified trainer in general practice he should not work independently for a period of re-training of at least six months after which he should undergo a further assessment of his performance as a doctor.

(b) any recommendation as to the management of the case.

The Assessment Team recommends that this should include further training in:

• assessment skills particularly focussed history taking and basic clinical examination

• using investigations appropriately

• good prescribing practice

• use of the IT record systems appropriate to his practice.

• training in communication skills with patients

• negotiation and assertion skills with both medical and non-medical colleagues

• developing his learning skills to enable him to identify his own learning needs in the future

There was no dissenting opinion."

17. Plainly the recommended further training there set out related to categories in which there had been a finding of 'cause for concern' as well as those in respect of which there had been a finding of 'unacceptable'.
18. I have indicated that Dr Clarke gave evidence. The material parts of his evidence, for the purpose of the matters I have to decide, are as follows:

"Q At paragraph 7.4 do you identify the areas of future training which you believe that Dr Gupta would require in order to pursue his general practice skills?

A It is a fairly broad sweep of most of the categories of Good Medical Practice but some of them are more deficient than others from what we have identified. That would be all of the elements that we felt were where he was under-performing.

Q On page 82 do you set out your formal opinion in relation to Dr Gupta as to the standard of his professional performance being deficient?

A Yes.

Q Was it likely to be improved by remedial action?

A We felt at the time of writing the report, yes, the answer to that was yes.

Q Why do you answer in that way?

A It is now March 2007. The report was written in January 2006. Dr Gupta has not worked since November 2004. It is more than two years since Dr Gupta has worked in clinical practice. I have no knowledge, it is not in my remit to know, what he has done since the assessment was made. Clearly there are guidelines for doctors who have been out of practice for any length of time as to how they get back into practice, even doctors who were clinically competent and have no concerns about their work. When they stop work the Royal College of GPs certainly recommends anybody who has not worked for two years would have to go through a period of supervision before they could be given really a place on a performers list of a PCT. Clearly Dr Gupta, even if we had no concerns about his performance, has gone beyond that two years now.

The environment in which training positions are now available and the money that is available for these training positions is not there. Although we perceive that Dr Gupta in the right environment, hopefully, would be able to build his skills up, had he been able to undertake that a year ago - again I have not discussed this with my assessors - but the view now would be that although remedial action would improve it, is it a practical proposition now? That is something, obviously, I think we might have to consider depending on the Panel's decision."

19. Secondly at page 91, starting just below B:

"Q ..... what the panel are considering here against the background of a case where they are being asked whether or not to take action against Dr Gupta's registration on the grounds of his performance, one question they need to consider is whether or not his performance, the evidence of his performance, is there evidence to suggest that it is deficient?

A Yes.

Q I understand from the way you have given your evidence that you stand by the conclusions with that amendment you have made in your report?

A Yes.

Q There then just remains this. At the end of your evidence you commented that the assessment took place in January 2006.

A Yes.

Q No, it did not. It took place at the end of 2005. Your conclusions were expressed in January 2006.

A Yes.

Q You said that a year has gone past, or more than a year has gone past, time has passed and our conclusion then was certainly that he was remediable?

A Yes.

Q You said that one of the factors helping you reach that conclusion was that you considered he had not had the opportunity for training and supervision?

A That is correct.

Q To remedy the situation. Nothing that you have heard from the questions I have asked you, what I put to you about what he actually had from the PCT - I think this morning I said he had 28 sessions of three hours and eight or nine sessions of three hours at another place - which causes you to change that view?

A No.

Q The only impediment then to him being remediable that you floated was the possibility that a year has gone by, is it practical?

A Yes.

Q The practicability is a different question for whether the potential is there?

A Absolutely."

20. Later he said:

"That may be all I needed to do. I just wanted to deal with that because you said you did not know what he had been doing and I wanted to suggest that there is no reason to think that he is not still remediable.

A There is no reason to think that."

21. Finally at page 99, by reference to the graph to which I have referred, there was the answer:

"A So he is not a long way away from that peer group that is competent and he is nowhere near the bottom end, the two or three doctors who came at the bottom left-hand corner, who I can remember well. He is nowhere near those either. He is somewhere in between. He is not a long way off but he is far enough off to be deficient in performance, which is the opinion of the assessment team."

22. It was common ground before the panel, both by reference to the evidence and the submissions, that the recommendations which I have recited from the assessors' report were not wholly practicable (see passages at pages 43G, 93C to D and 144G which I do not quote in this judgment). However suggestions were put forward both in suggested undertakings by the appellant and in the evidence of the advice given by Dr Harker. I read from what Dr Harker said as follows (page 153):

"DR HARKER: Yes. I am presuming that, if you like, rather than saying that it is. If you presume that, you come to what can be done. I think, as I have mentioned in an answer to your question, the Panel's recommendation of a close supervision by a qualified trainer in general practice would be very difficult, but I think it is possible to still be closely supervised and mentored.

If I could just go through some of the points I have written down. For instance, I cannot see any reason why a doctor working under supervision in general practice could not be allowed to attend the local Vocational Training Scheme half-day release, which is a three-year rolling programme, which over a period of time certainly covers a lot of things. Obviously that is the sort of thing that would require co-operation from the PCT because ultimately to be able to do any sort of work in general practice Dr Gupta would have to be on a PCT performers' list.

We have mentioned summative assessment. I think it is important possibly not to rely too much on summative assessment. The summative assessment test of knowledge is designed for doctors who have gone through a three-year training programme and it does not stand on its own. It has elements of audit and communication skills assessment via videos. I think it is not designed for experienced GPs who possibly have not had a lot of formal education in general practice. I think sometimes the assessment of a GP is better done by an assessment process or by one-to-one interactions observing videos rather than necessarily the summative assessment multiple choice.

If I could comment on PDP plans. If there is to be a PDP plan I think it needs to be very focussed. Dr Jarvis asked about appraisal. I think Dr Gupta would have possibly had a chance to have one appraisal before he was suspended from the performers list. I think it has been running for four or five years now. In a sense, you can still be appraised even if you are not working. It is a process that is appraisal of your present position and where you are going. I would just commend appraisal as a very useful way of developing a focused personal development plan.

I think personal development plans need to concentrate on primary care. I am not belittling attendance at hospital clinics, but you do not learn a lot of primary care by attending hospital out-patients. I think the focus needs to be on what you learn in primary care, if it is to be an efficient use of your time. Attendance at hospital can be useful for a knowledge update, but I think the focus needs to be on what can be learned in primary care.

As regards supervision and working, I think supervision for a GP can be divided into workplace supervision and educational supervision. Workplace supervision one-to-one is very difficult in general practice because GPs basically consult on their own. I think there is a place for a couple of sessions of consulting either being videoed or watched or another doctor sitting in, but I think that places are quite limited. Even a new registrar in general practice who has never done any general practice before would only have a relatively few sessions whereby another doctor would sit in with him. I think you may have someone sitting in initially to make sure - if I can put it possibly a bit too strongly - that you are not an obvious danger to patients, but after that, I think learning and experience in general practice comes from doing surgeries, maybe reporting afterwards what you have done as part of case discussions and reviewing videos with other people.

I think a workplace supervisor can be, if you like, an ordinary day-do-day GP who is experienced and that need not take an awful lot of time. I think what is important though is that is linked in with good educational supervision, and that may well come from one or two sessions a week with an educational input with a trainer, a GP tutor, or an experienced mentor and that can work. I have some experience of having done that myself, and I think if the doctor is willing to engage with a mentor or supervisor that can be very successful, but it does require a lot of time commitment and probably a lot of financial commitment.

The only other point I would make is that I think six months for a reassessment is too short. I think Mr Hyam mentioned that. I think realistically it would need to be a year. I think Dr Clarke mentioned that it would only need to be the test of competence part of it. My own view - and obviously this is something the Panel would decide - was that it should be a full assessment. If it is possible for Dr Gupta to get back to work, a full assessment would allow the observation of consultation part to be done and, if you like, the emergency situation part to be done, which was not possible on the first assessment. I think that might be better than a limited assessment."

23. In his closing submissions Mr Sephton QC said as follows:

"I invite the panel to reach the conclusion that conditions are an appropriate, proportionate response provided that the Panel is satisfied that workable conditions can be devised to fit the bill in this particular case."

24. Mr Hyam said this at page 159 D to F:

"The specialist GP adviser, Dr Harker, has indicated that benefits may be obtainable from the sort of training that we envisaged. The undertakings we put forward and the conditions, if they were made into conditions, or the restrictions that we suggest are deliberately flexible to allow not just working as a GP but if necessary in a hospital as a clinical attachment, or in some other area, whether NHS or private. If you decided that private posts were not appropriate, the appropriate imposition of the condition or undertaking would be to amend that so as to reflect that only NHS jobs could be undertaken.

My submission is that on the evidence of what you have heard about the remedial nature of the deficiency, the doctor's insight and willingness and ability to identify his training needs and willingness to meet them, you really must be satisfied that conditions or undertakings cannot work before you go on to consider suspension as a proportionate sanction."

25. There was before the panel the helpful document issued by the General Medical Council, regulating doctors and ensuring good medical practice, called Indicative Sanctions Guidance Fitness to Practise Panels dated April 2005. Conditions are referred to under the heading Conditional Registration (maximum 3 years). The material paragraph to which I refer specifically is paragraph 24:

"The objectives of any conditions or educational guidance should be made clear so that the doctor knows what is expected of him or her and so that a panel, at any future review hearing, is able to ascertain the original shortcomings and the exact proposals for their correction. Only with these established will it be able to evaluate whether they have been achieved. Any conditions should be appropriate, proportionate, workable and measurable, and in practical terms should be discussed fully by the panel before voting. Before imposing educational conditions the panel should satisfy itself that:

a. The problem is amenable to improvement through education.

b. The objectives of the conditions are clear.

c. A future panel will be readily able to determine whether the educational objective has been achieved and whether patients will or will not be avoidably at risk."

26. There is a further reference under the heading of "The Sanctions" in which it states:

"This sanction [that is Conditional Registration] may be appropriate when most or all of the following factors are apparent (this list is not exhaustive):" -

Two are relevant to our consideration -

" .....

- No evidence of general incompetence.

.....

- It is possible to formulate appropriate and practical conditions to impose on registration."

The relevant paragraph relating to suspension (up to 12 months) is paragraph 28 of the guidance:

"28 Suspension is also likely to be appropriate in a case of deficient performance in which the doctor currently poses a risk of harm to patients but where there is evidence that he or she has gained insight into their deficiencies and has the potential to be rehabilitated if prepared to undergo a rehabilitation programme. In such cases to protect patients and the public interest the panel might wish to impose a period of suspension, direct a review hearing and recommend the type of educational programme the doctor might undergo during the suspension, or action he or she might wish to take. The panel should, however, bear in mind that during the period of suspension the doctor will not be able to practise. S/he may, however, have contact with patients similar to that of a final year medical student, i.e. under the supervision of a fully registered medical practitioner, and provided that the patients have been informed of the doctor's registration status, the events which resulted in the suspension of the doctor's registration and given their full consent."

27. The decision of the panel on sanction is that which is under appeal. The tribunal first dealt with whether it would be sufficient to accept the undertakings submitted by Mr Hyam, on the appellant's behalf, which were opposed by Mr Sephton QC on the grounds that they could not be sufficiently monitored by the General Medical Council, and did not comprehensively address the training and close supervisory needs that were recommended by the assessment team. The panel said as follows (page 166):

"In considering the undertakings, the Panel has taken into account a number of factors. The Panel first considered whether your proposed undertakings would cover any conditions that it would otherwise impose, but it is not satisfied that the undertakings would cover them. Furthermore, undertakings would not allow sufficient objective monitoring of your progress that would be needed in order to protect patients. If it were to accept the undertakings offered, the Panel would lose jurisdiction of your case and it would not be able to consider matters at a review hearing. The Panel therefore does not accept the undertakings you have offered."

The panel then turned to consideration of what sanction it was to impose, and this is the central part of the judgment (at page 166H to 169D):

"The panel next considered whether it would be sufficient to place conditions on your registration. It also considered whether conditions could be formulated which would assist you in addressing your performance, and would adequately reflect the seriousness of this case. It has borne in mind that any conditions must be appropriate, proportionate, workable and measurable.

The panel notes that the Assessment Team made the following recommendation:

'Dr Gupta's professional practice should be limited to working only under the close supervision of a qualified trainer in general practice. He should not work independently for a period of re-training of at least six months (sic), after which, he should undergo a further assessment of his performance as a doctor.'

However, in the light of all the evidence, including the findings of the Assessment Team, and the fact that you have not practised medicine since 2004, the Panel has determined that a period of conditional registration is not sufficient in this case.

The reason for this is that the Panel believes it is not possible to formulate workable conditions that would be sufficient to protect patients. In view of the breadth of the deficiencies in the standard of your professional performance, and your lack of many of the fundamental core skills required of any medical practitioner, the Panel believes that if you were to have unrestricted or conditional registration, you would pose a real risk to patient safety. Indeed, the Indicative Sanctions Guidance indicates that conditional registration may not be appropriate where there is evidence of general incompetence.

The Panel then went on to consider whether a period of suspension would be an appropriate sanction. The Panel has taken into account the Indicative Sanctions Guidance, SI-6, paragraph 28, which states:

'Suspension is also likely to be appropriate in a case of deficient performance in which the doctor currently poses a risk of harm to patients but where there is evidence that he or she has gained insight into their deficiencies and has the potential to be rehabilitated if prepared to undergo a rehabilitation programme. In such cases to protect patients and the public interest the panel might wish to impose a period of suspension, direct a review hearing and recommend the type of educational programme the doctor might undergo during the suspension, or action he or she might wish to take. The panel should, however, bear in mind that during the period of suspension the doctor will not be able to practise. He may, however, have contact with patients similar to that of a final year medical student, ie under the supervision of a fully registered medical practitioner, and provided that the patients have been informed of the doctor's registration status, the events which resulted in the suspension of the doctor's registration and given their full consent.'

Having taken all the factors in this case into account, the Panel has therefore determined that it would be appropriate, sufficient and proportionate to suspend your registration.

The Panel then considered the length of time it should suspend your registration. It believes that a period of at least twelve months will be needed for you to address the performance issues identified.

For this reason, the Panel considers that it is appropriate and proportionate to direct the Registrar to suspend your registration for a period of twelve months.

Shortly before the end of the period of suspension, a Fitness to Practise Panel will review your case and a letter will be sent to you about the arrangements for the review hearing. However, you have the right to request an earlier review of this case if you consider it appropriate.

The next Panel reviewing your case would find it helpful to see documentary evidence as to how you have addressed the ares of deficiency identified in the assessment report. The Panel reviewing your case would also find it helpful to see the following:

• Evidence of discussion of your personal development plan (PDP) with an appropriately qualified and fully registered medical practitioner,

• A copy of your Personal Development Plan.

• Evidence of courses you have attended, and a reflective journal of key learning points and how these may affect your practice, when implemented.

• A report from any supervisor as to any clinical attachments you may have undertaken.

• A log book of patients seen, setting your diagnoses, management plan and any identified learning needs.

• Evidence of any further medical learning.

Any future Panel would need to satisfy itself of your competence before allowing you to return to medical practice. It would help their deliberations to receive a report on a further Phase Two performance assessment. For the avoidance of doubt, the onus is upon you to apply for such a performance assessment, if you consider it appropriate."

28. Mr Hyam put his appeal on what were on the face of it three bases: (a) the panel's decision to suspend was based on factual findings which were unsustainable on the evidence, (b) the panel's reasoning was inadequate and really amounted only to a recitation of the relevant guidance rather than a reasoned analysis of why conditions were not appropriate in the present case, (c) "the sanction of suspension for 12 months with a recommendation ..... that the panel prior to a review of his suspension 'would find it helpful to see documentary evidence as to how [he would address] the areas of deficiency identified in the assessment report' - was plainly disproportionate and inappropriate on the facts of this case, as well as being practically impossible to comply with given the fact of suspension".
29. Mr Hyam recognises the difficulty which he faces on an appeal of this kind which although it is, on the face of it, a re-hearing - although inevitably without the oral evidence that was given below and without the benefit of the kind of expert judges present who sat on the panel - it is circumscribed by the authorities which have now increased in their numbers, both during the period when these appeals went to the Privy Council and since they have come to the Administrative Court, the jurisprudence not changing save by reference to the incorporation of the Human Rights Act in the meanwhile.
30. There has been a large number of authorities to which reference has been made by both counsel by incorporation in their bundles of authorities, although not least because I was given the opportunity to pre-read by reference to extremely helpful skeleton arguments on both sides, it has not been necessary to recite any of those authorities in open court. Mr Hyam relied upon R v General Medical Council ex p Salvi (The Times 24 February 1990), Nandi v General Medical Council [2004] EWHC 2317, R (Patterson) v General Medical Council [2006] EWHC 891 (Admin) and Ghosh v General Medical Council [2001] 1 WLR 1915.
31. The defendant rightly, in my judgment, impliedly submitted that the juice to be extracted from all those authorities has been coagulated in an extremely clear and helpful decision of the Court of Appeal in Raschid v General Medical Council [2007] 1 WLR 1460. He also relied on Sadler v General Medical Council [2003] 1 WLR 2259 and Gupta v General Medical Council [2002] 1 WLR 1691.
32. The gist of the authorities, as summarised and made entirely clear by Laws LJ in Raschid, is clearest in paragraphs 19, 20 and 26 of his judgment. That emphasises that particular force is given to the need to accord special respect to the judgment of the professional decision-making body in the shape of the panel. Such approach does not emasculate the High Court's role in Section 40 appeals. The High Court will correct material errors of fact and, of course, of law. It will exercise a judgment, "though distinctly and firmly a secondary judgment", as to the application of the principles to the facts of the case. At paragraph 26, in overruling two decisions in that case of Collins J, Laws LJ stated that those judgments did not -

" ..... in my view remotely offer sufficient recognition of the two principles which are especially important in this jurisdiction: the preservation of public confidence in the profession and the need in consequence to give special place to the judgment of the specialist tribunal."

33. Mr Englehart submits, and I agree, that that must be particularly the case where it is not a question of misconduct, as it was in Raschid, but of standards of professional practice and treatment.
34. Against that background, Mr Hyam does seek to argue the matter on the basis that - notwithstanding that general principle - there are important errors in this case made by the panel. But, albeit the way he put it was effectively on three bases as I earlier recited, he accepted in the course of argument that his appeal slimmed down to two points, and he has to succeed on both of them. If he does succeed on them, that would mean the decision of the panel would be Wednesbury unreasonable and/or irrational and that the sanction imposed would have been disproportionate.
35. The first way in which he puts the case is that the panel erred in relation to its conclusion, set out very shortly (to take the nub of the passage) at page 167E:

"In view of the breadth of the deficiencies in the standard of your professional performance, and your lack of many of the fundamental core skills required of any medical practitioner ..... "

He submits that that was an important error, and either an error of law or such an error as to render the conclusion of the panel irrational, because the assessors' report, which Dr Clarke spoke to and supported orally at the hearing, only reported two (previously three but reduced to two) categories in which the performance of the appellant was found to be 'unacceptable'. His submission was that the nine categories in respect of which there was a finding of 'cause for concern' ought to have been disregarded by the panel, because they did not constitute a finding of deficiency or unfitness.

36. In order to arrive at this argument he referred to the words used by the assessors in their report, which, as became clear when Mr Englehart QC, with the assistance of those behind him, produced the Assessors' Handbook from which I have earlier cited, did not amount to a full quotation of the guidance to assessors which I cited earlier in this judgment. The passage in the report upon which Mr Hyam relied was this:

"'Cause for concern' means that there is evidence that the doctor's performance may not be acceptable but there is insufficient evidence to suggest deficient performance. The reasons for using this grade rather than 'acceptable' or 'unacceptable' will be described in each category in which it is given."

It can be seen that the additional words set out in the Handbook -

"This grade should be entered if you have evidence of some instances of unacceptable performance which, in the view of the assessing team, do not amount overall to unacceptable performance. The reasons for using this grade rather than 'unacceptable' for this aspect of performance should be described" -

are omitted.

37. Mr Hyam consequently submits that, by reference to the words used by this team in its report, because the definition it set out meant that "cause for concern" means " ..... there is insufficient evidence to suggest deficient performance", thus a finding of anything other than 'unacceptable', a finding in relation to the nine categories (previously eight) that they were 'cause for concern', as defined, meant that in respect of those nine categories there was a finding by the assessors' report that the performance in relation to those eight/nine categories was not deficient, and they should have been put out of mind both by the assessors, and certainly by the panel.
38. That was an ingenious argument but, in my judgment, it cannot be supported.
39. (1) The contents of the report, even if one had not known that this was simply a misquotation from the assessors' hand book, are not to be treated like a statute or regulation.
40. (2) It is not consistent with the wording of the Handbook which was plainly the guidance given to the assessors.
41. (3) It is entirely inconsistent with the definition 'cause for concern', which is said to be the subject of the relevant paragraph. If Mr Hyam were right, and the position were that if it did not qualify as 'unacceptable' then it must be put out of mind, there would be no 'cause for concern'.
42. (4) It is not consistent with the findings by the assessors in relation to each of the categories which resulted in that conclusion. All of them included serious matters of criticism, even if the total of them did not get the final conclusion into the category of 'unacceptable'.
43. (5) As I said earlier in the judgment, the need for training which formed part of the recommendations of the report, under the clear rubric that "the standard of the practitioner's professional performance had been deficient", included a number of categories in respect of which there had been a finding of 'cause for concern'.
44. It is quite plain that this was intended to be a category in which the assessment team were unable to make the clear finding of unacceptable for which, as not only the Handbook but also paragraph 1.4.4 of their report makes clear, triangulation was necessary before any conclusion could be reached. Hence, as I described earlier in the judgment, on reconsideration by Dr Clarke, one of the categories was moved from unacceptable to cause for concern.
45. It is plain, in my judgment, that the words set out in the report are not dissimilar to those in this respect in the Assessors' Handbook; "evidence that the doctor's performance may not be acceptable but there is insufficient evidence to suggest deficient performance" really means, and indeed it would be much better if it said, "there is insufficient evidence to classify it as unacceptable."
46. It is quite plain that a doctor, in my judgment, can be criticised in respect of all those categories where there are findings of 'cause for concern'. A category in respect of which there is a triangulated conclusion that the conduct is 'unacceptable' is plainly a matter for criticism as to deficiency. But, in my judgment, it is still a serious matter of criticism for a doctor if he cannot prove competence, even if a conclusion of incompetence, or lack of proficiency, cannot be proved to the triangulated respect required. That is clear from the very contents of the Assessors' report, as I have indicated.
47. It put the case very high for Mr Hyam to submit, as he did, that the panel should have disregarded all those items in respect of which there was no finding of 'unacceptable'. The problem for him is that the minute he retreats from that argument, and submits simply that the assessment was wrong or too critical, he finds himself right in the area not only of difficulty such as enshrined in Raschid but indeed the kind of difficulty that occurs on any appeal of this kind. He sought to submit that as an alternative the panel were not entitled to conclude, as it did, that there was the "breadth of deficiency" or "lack of many of the fundamental core skills required" in relation to a doctor who had only two 'unacceptables' and nine 'causes for concern'. That is to seek to second-guess the perfectly proper conclusion of the assessment team which made the findings it did, quite apart from the categories in which it was required to render its conclusions, and the conclusion of the panel.
48. I was in particular not persuaded by his argument in relation to the examinations/tests to which I have referred, whereby in reference to the passage in Dr Clarke's evidence, which I have recited, when he accepted that the appellant was not the worst of those who took part in the examination. That is evidence which the panel will have heard. It seems to me that any panel must be entitled to note and to take account of the fact that he was in the bottom nine out of those 115 doctors.
49. In those circumstances I am entirely unpersuaded that there was any error of law in relation to the conclusion by the panel; they were entitled to take account of the relevant deficiencies in the standard of his performance and the lack of fundamental core skills, as concluded by the assessment team and that, in doing so, they were not differing from, but accepting, the conclusions of the assessment team and the evidence of Dr Clarke in support of them.
50. I turn to Mr Hyam's second submission, which can be headlined Workability. He submitted that it was a fundamental part of the conclusion by the panel that conditional registration would be unworkable and that the panel had given inadequate reasoning for differing from the evidence which showed that there were workable conditions, which could have been adopted to arrive at a more proportionate sanction than that which was imposed.
51. I have referred to the fact that it was common ground that the stringent recommendations in the assessment team's report could not, in the end, be exactly replicated. There are two particular requirements in that report - "Working only under close supervision of a qualified trainer in general practice" and "He should not work independently" - which were, for various reasons as referred to in the evidence, some of which I have quoted from and referred to in this judgment, not capable of replication.
52. Mr Hyam has referred to the evidence which I have also cited where Dr Clarke said that, in his judgment, the appellant was "remediable". Dr Harker, in the passage which I have recited, suggested possibilities of training within a scheme of arrangement. There was the central passage in Mr Hyam's submissions which I have recited.
53. Mr Englehart submits that the panel was not disagreeing either with the assessors or with the special performance adviser in reaching the conclusion it did.
54. (1) The precise recommendations of the assessors' report were not canvassed, because of the common ground to which I have referred, and therefore there was a difference from the assessors' report but one which was necessary.
55. (2) The conditions which were being put forward might have been feasible but, for reasons which the panel made clear, they did not comply with what they saw to be the needs of the public. To reject what was being put forward did not amount either to a rejection of the assessors' report for that reason or of the evidence of Dr Clarke or certainly, because Dr Harker's advice was, in any event, predicated upon assumptions as to what the panel's verdict would be of Dr Harker.
56. Mr Englehart has referred to the words of Lord Hope in Selvanathan [2001] Lloyd's Rep Med 1 at 7, which are incorporated and approved in Gupta [2002] 1 WLR 1691 at paragraph 6 in the speech of Lord Rodger:

"It is not to be expected of the [panel] that they should give detailed reasons for their findings of fact."

57. A panel is not a court of law, but it must give sufficient reasons or reason to enable its decision to be clear. It is common ground between the parties that it is possible - although Mr Englehart submits it did not happen on this occasion - for the tribunal to differ from the views of the assessors' report just as, from time to time, in High Court litigation a judge is permitted to differ from the views of both experts giving evidence before him. But Mr Englehart accepts, and Mr Hyam points out, that, if that is to be the case, reasons should be given so as to identify why that disagreement has occurred, as were given in the example Mr Englehart has produced of Holton v General Medical Council [2006] EWHC 2960 (Admin). He submits that the reasoning of the panel in this case is entirely clear, given that they were dealing with recommendations that were not the same as had been put forward to the court, but were conditions that had certainly been canvassed before them both in the evidence and submissions, as I have described earlier in this judgment.
58. He submits as follows:
59. (1) The judgment of the panel at 167B refers to the recommendation by the assessment team, which itself includes the two requirements for close supervision and no independent work which could not be fully effective for the reasons previously described. Having set out that matter, the panel then continued:

"However in the light of all the evidence" -

which, I interpose, must include the non-feasibility of the precise terms of the recommendation, including the findings of the assessment team, and that obviously includes their precise criticisms of the particular failings -

"and the fact that you have not practised medicine since 2004" -

obviously that is an additional factor to the conclusions by the assessment team, because subsequent to the report of January 2006 there had by then been another 14 months in which the appellant had continued not to work -

"the panel has determined that a period of conditional registration is not sufficient in this case."

60. That, Mr Englehart submits, and I agree, shows that the panel is not disagreeing with the assessment that is in the report, but is using the assessment in the report as one of the tools with which it is reaching its conclusion. The other tools are the passage of time and the other evidence given before it.
61. (2) The panel then proceeds immediately to set out the following:

"The reason for this is that the panel believes it is not possible to formulate workable conditions that would be sufficient to protect patients."

62. Mr Englehart QC points to the words of the Privy Council in the speech of Lord Walker in Sadler at 2272 G:

"The purpose of all the provisions is to protect the public from sub-standard medical care, not to punish practitioners for blameworthy acts or omissions."

It is clear, submits Mr Englehart, that the panel is there addressing whether the conditions that are being canvassed before them, all of them different from that which formed part of the recommendation in the assessment report, would be workable, in the sense of being sufficient to protect patients.

63. (3) The panel then continues once again to refer to the "breadth of deficiencies", which I have already found the panel was entitled to have regard to and the "lack of many of the fundamental core skills", and to conclude that if the appellant were to have unrestricted or conditional registration "you would pose a real risk to patient safety." That is, in my judgment, a conclusion which the panel was entitled to reach in the light of the explanation it gave.
64. (4) Perhaps the clearest explanation of the panel's thinking is set out in the last sentence of this paragraph:

"Indeed the Indicative Sanctions Guidance indicates that conditional registration may not be appropriate where there is evidence of general incompetence."

This is a reference to the guidance, which I have already cited earlier in this judgment. Given the panel's conclusion that there was general incompetence in this case, the panel was there referring to one of the specific reasons given why conditional registration may not be or - given the facts of the case in front of them as they concluded it - was not appropriate.

65. In my judgment there was no discrepancy between the evidence of Dr Clarke that the appellant was "remediable" and the conclusion by the panel that conditions were insufficient to protect the public. It is plain that the panel did conclude - and indeed accepted the evidence of Dr Clarke - that the appellant was "remediable", by virtue of the terms, in which it set out with some degree of optimism that the arrangements that could be made for the appellant during the suspension period might assist him to "address the areas of deficiency identified in the assessment report so that he would be able to on review restore himself to full registration".
66. I conclude that there is no error of law by the tribunal in this regard nor a failure to give adequate reasoning. In those circumstances this appeal is dismissed.
67. MR ENGLEHART: I would ask for dismissal with costs. He is represented by his union. It is irrelevant that he is represented by his defence union but it gives us some confidence. I would invite your Lordship to assess the costs, the case being listed for a day. We put in a schedule.
68. MR JUSTICE BURTON: Has there been a schedule put in by the claimant?
69. MR ENGLEHART: Yes.
70. MR JUSTICE BURTON: I have not seen that. I have the defendant's schedule but not others.
71. MR HYAM: It was faxed yesterday.
72. MR JUSTICE BURTON: I am sure it was, but it did not reach me.
73. MR HYAM: It is quite a useful comparison. (Handed)
74. MR ENGLEHART: It is undoubtedly the case that there is substantially more.
75. MR JUSTICE BURTON: There is a clear distinction between the seniority of counsel so that I can understand. Are there other matters?
76. MR ENGLEHART: There is one other matter. I did not appear below. The fee for advice, conference, documents is quite large. I had to start from scratch. So be it.
77. MR JUSTICE BURTON: That is the 17,000 compared with the 4,000. That is the difference.
78. MR ENGLEHART: I think it is.
79. MR JUSTICE BURTON: What do you say about that?
80. MR HYAM: I do not object to the making of a costs order in principle, although my preference would be for this matter to go to detailed assessment. If we are to deal with it on a summary basis - - - - -
81. MR JUSTICE BURTON: I have to declare immediately my dislike for summary assessment for the very reason that it is very rare you give the respondent everything they want or the claimant, if successful, everything they want when it is perfectly likely they may be entitled to everything they want. Equally one may give too much. My reaction normally is to encourage agreement of costs by making a substantial interim order and sending the balance off to assessment, knowing that the parties will be able to agree matters between solicitors.
82. MR HYAM: I address you on that basis then, because you have rightly identified that the difference between us is the fee for advice and the fee for hearing in respect of it. The first point is the reading or re-reading in. This case was presented by Mr Craig Sephton QC below. The reason he is not here presenting this appeal - I do not know but I assume - is not because of unavailability but because the preference of the GMC is to instruct leading counsel who specialises in public law to present these appeals. Of course, if they choose to do that that is going to necessitate a whole re-reading of all the transcript evidence and duplicate the amount of costs in this appeal.
83. The second point is this is, and was, a one-day appeal against a sanction. There is plenty of authority, if it is really authority, under the heading proportionality in the White Book under the heading "Summary Assessment of Costs" where large sums of costs for leading and junior counsel are cut right down to very low sums.
84. MR JUSTICE BURTON: This is what is so regrettable because it may be they are all due, and either a solicitor who knows all about costs or a costs judge will say this is absolutely fine. It just seems to me so inappropriate to say £23,000 is far too much for a day. My reaction would be to say there ought to be a sum of, say, £16,000 paid by way of interim payment and the balance to detailed assessment in the hope that there can be agreement between the parties hereafter.
85. MR HYAM: I have to address you on even the £16,000. My costs for this appeal, including solicitors, are £9,000 so £16,000 is already nearly double. The issue was sanction; there is no point of law here.
86. MR JUSTICE BURTON: I assume you are not going to ask for leave to appeal!
87. MR HYAM: Certainly not. The real point is - and there is no criticism of the way either Mr Englehart drafted the skeleton argument or prepared it - essentially it is a vast sum of money if that is the price of challenging this appeal that my defence union must pay is exorbitant, to have to go back and say, there we are, that is what you risk if you want to try and challenge a GMC decision like this. I understand the reasoning of your judgment, but it was not an unreasonable appeal to bring, and costs follow the event I accept, but should I be saddled with a very large sum in costs? I think a reasonable sum of costs in this case, a total to recover for the defendant, would be £12,500. That would be - - - - -
88. MR JUSTICE BURTON: That would not be an interim payment, that would be a summary assessment.
89. MR HYAM: If you were going to make an interim payment, I would ask an interim of, say, £10,000.
90. MR JUSTICE BURTON: I am going to say £15,000, Mr Hyam; interim £15,000. You have bought yourself £1,000. Interim £15,000, balance to detailed assessment, if not agreed. The point that your solicitors will want to make about the excess cost of counsel may be something possibly to agree in correspondence and hopefully there will not be a need to go to a costs judge.
91. MR ENGLEHART: Does that include VAT?
92. MR JUSTICE BURTON: It includes VAT. There is no issue on VAT I take it?
93. MR HYAM: No.