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
		17th July 2008

1. MR JUSTICE OUSELEY: In a decision letter dated 18th October 2007 the Fitness to Practise Panel of the General Medical Council recounted its decisions that, having regard to its findings of fact, Dr Rengarajaperumal's fitness to practise as a consultant orthopaedic surgeon was impaired because of misconduct and deficient professional performance, and that he should only practise subject to conditions of supervision and notification for a period of 9 months with immediate effect.
2. Dr Renga, as he was known in the appeal before the Fitness to Practise Panel, and in this court, appeals against that decision under section 40 of the Medical Act 1983 (as amended in 2002). This appeal is a re-hearing by virtue of CPR, Part 52 and paragraph 22.3(2) of the Practice Direction. The limitations on that re-hearing are dealt with in a number of cases to which it is not necessary to refer. The appeal can be brought on the basis of error of fact or law or judgment on the part of the Panel. Dr Renga's appeal is on quite a narrow basis.
3. The Panel found a number of allegations made against him by the GMC proved. All arose over a 5-month period in 2003-2004 at Homerton Hospital. It found proved five allegations of negligence as a consultant orthopaedic surgeon in relation to three patients, one allegation that Dr Renga had acted beyond the limits of his professional competence and one allegation that he lacked insight into the limits of his professional competence. Both those latter two allegations related to the same patient, one of the three in respect of whom two of the negligence allegations were found proved. Many other allegations were found not proved.
4. There is no challenge to those findings. Miss O'Rourke accepted that there would have been no challenge to the conclusion that those findings showed serious misconduct and deficient professional performance in hearing Dr Renga's fitness to practise, except for intervening decisions of the Panel, which she submits make that conclusion irrational. Nonetheless, Miss O'Rourke suggested that that decision was a borderline one, taken on its own. No challenge is made, either, to the sanctions imposed if the finding of impaired fitness to practise is upheld. Accordingly, it is to the sequence of decisions and the reasons for that sequence of decisions to which it is necessary to turn.
5. I have to set out the relevant procedural rules in order to provide the context for that sequence of decisions. These are the General Medical Council (Fitness to Practise) Rules 2004. Where allegations are made against the doctor which raise a question of his fitness to practise, the allegations are first considered by the registrar, who can carry out an initial investigation, including directing that a performance assessment of the doctor be carried out. I shall come back to that later. The matter is then referred to a case examiner, who can refer to the Panel, as happened here.
6. Although the allegations initially involved six patients, by the time the notice of inquiry had been prepared by the GMC as prosecutor after investigation, allegations were only pursued in respect of four patients. As I have said, they were only found proved in respect of three.
7. The Fitness to Practise Panel had the advantage of a specialist performance adviser, and a legal adviser as well.
8. Rule 17 of the 2004 Rules deals with the procedure to be adopted before the Panel. It envisages in Rule 17(2)(i) that the Panel will announce its findings of fact on the allegations particularised in the notice. There were, in this case, findings of fact as to what Dr Renga had or had not done in the course of surgery, and whether that fell below the standard expected or went beyond the limits of his professional competence or demonstrated a lack of insight into his professional competence. Rules 17(2)(j) and 17(2)(k) provide:

"(j) the FTP Panel shall receive further evidence and hear any further submissions from the parties as to whether, on the basis of any facts found proved, the practitioner's fitness to practise is impaired;

(k) the FTP Panel shall consider and announce its finding on the question of whether the fitness to practise of the practitioner is impaired, and shall give its reasons for that decision..."

This is the procedure that has led to the difficulties here.

9. There is then provision for further evidence and submissions as to sanction if fitness to practise is impaired, or as to a warning if fitness is found not to be impaired. Miss O'Rourke points out that there is no provision, therefore, for sanction if no impairment of fitness to practise is found. She submits that this can be a cause for anxiety in some cases, and especially so where the evidence of the practitioner suggests that fitness to practise may have been impaired, or that his fitness is of uncertain quality, perhaps as a result of a period without work while the GMC investigated allegations against him. Here Dr Renga was without work for nearly 3 years because of the effect of the GMC investigation on his ability to obtain locum consultant work.
10. What happened here, on the facts, was this: although the Panel rejected many of the allegations against Dr Renga, including all those in respect of one of the four patients in relation to whom proceedings were brought, it found the facts proved in relation to three patients as follows.
11. In September 2003 patient LD was admitted to hospital with a fracture of the mid-shaft of the left leg. This was treated by an intramedullary nail. When the patient was reviewed, it was noted that the fracture fixation had failed and the fracture fragments had moved. Revision surgery was contemplated. The nail was removed and an LISS plate was inserted instead. In the course of that surgery Dr Renga did not ensure that some of the screws in the plate adequately engaged the bone. This was not to the required standard.
12. In January 2004 he performed a total knee replacement for patient TS. In the course of that surgery he did not identify the extent of the malalignment of the knee, nor did he correct it. Later revision surgery to that knee was carried out by him. Failing to identify and correct the malalignment was not to the standard to be expected of a consultant orthopaedic surgeon.
13. In February 2004 patient RP was admitted with a fracture of the left femur, which he fixed by using an intramedullary nail. He did not achieve adequate reduction of the facture before introducing the nail. The Panel concluded that that was not of the standard expected of a consultant orthopaedic surgeon and demonstrated a lack of insight into his professional competence. In addition, he did not ensure that distal locking screws were inserted. Again, the Panel found that was not of the standard expected and was beyond the limits of his professional competence. He subsequently proposed that the nail be replaced with a plate and further revision surgery was carried out.
14. The Panel then heard submissions as to whether on those facts Dr Renga's fitness to practise was impaired. No further evidence was called or sought. Mr Pearce, counsel for the GMC, submitted that Dr Renga had shown repeated surgical error mistakes, and repeated evidence of an unsatisfactory standard. Although the operations had complications, none were unduly difficult for a consultant. His failings had had serious consequences in two cases, involving further operations. Dr Renga had denied in the teeth of the evidence that he failed to achieve a proper fixation in the case of LD; he had no justification for failing to correct the way he had dealt with the malalignment of the knee, maintaining that no great problem had arisen in the case of TS, and had had to be persuaded to re-operate. In the case of RP he had consistently failed to recognise why remedial surgery was necessary.
15. It was not just the errors themselves but the lack of adequate explanation which led to the conclusion that there was a pattern of seriousness which had serious consequences which, submitted Mr Pearce, led to an impaired fitness to practise. These were persistent technical failings or repeated departures from good practice.
16. Miss O'Rourke for Dr Renga submitted with emphasis that misconduct and deficient professional performance were separate. She emphasised, by reference to the decision of the Court of Appeal in Professor Sir Roy Meadow v General Medical Council [2007] QB 462 ([2006] EWCA Civ 1390), that misconduct had to be serious, bringing the profession into disrepute. Negligence had to be serious and to be of a high degree and not just mistaken. She pointed out the particular difficulties represented by each patient. In the course of her submissions she pointed out that the allegations were only made out in respect of three out of 300 cases which Dr Renga had dealt with in the past 8 months as a locum at Homerton Hospital. She submitted that this could not be repeated or persistent failing.
17. When dealing with deficient performance, she pointed out twice that it was unusual for such an allegation to be made in a case where no performance assessment had been undertaken. She said this meant that there had been no review of the range of cases, including those in which Dr Renga had performed well, nor had there been discussion of his overall performance. Performance had to be seriously deficient in order to amount to deficient performance, and this was not.
18. The legal assessor commented that the question for the Panel was whether it found:

"Mr Renga's fitness to practise is impaired by reason of misconduct and/or deficient professional performance."

What he then said is of some importance:

"In doing so I would draw your attention to the fact that the Rules use the present tense, namely, is the doctor's fitness to practise impaired? However, considering the doctor's present situation you will also need to look back at his previous history as a doctor. Indeed, in the Sir Roy Meadow case that I have already referred to, the Master of the Rolls... commenting on fitness to practise proceedings generally, said...

'The [FTP] thus looks forward not back. However, in order to form a view as to the fitness of a person to practise today, it is evident that it will have to take account of the way in which the person concerned has acted or failed to act in the past.'

I would also remind you yet again, as I did at the previous stage, of your powers at this stage under Rule 17(4) to appoint a Specialist Health or Performance Adviser to assist you or to require a performance or health assessment to be carried out as well as your powers under 17(9), to adjourn for further information or reports, as I stated previously. I am not inviting you to do so, I am simply drawing your attention to the fact that you do have these powers still available to you at this stage of the proceedings."

19. After some 3-4 hours the Fitness to Practise Panel returned. The parties had been expecting a decision on whether Dr Renga was fit to practise. Instead the Panel, after dealing with the facts which had already been found, said that it noted Rule 17(4) of the 2004 Rules, to which the legal assessor had drawn their attention. Rule 17(4)(b) provides this:

"(4) At any stage in the proceedings, before making a determination that a practitioner's fitness to practise is impaired, the FTP Panel may, having regard to the nature of the allegation under consideration, adjourn and direct:

(b) that an assessment of the practitioner's performance... be carried out in accordance with Schedule 1..."

20. The Panel continued in this way:

"The Panel considers that the main themes of this case are the performance of surgery in relation to fixation devices to an unsatisfactory standard and an inability to identify errors and take appropriate action. The Panel is mindful of the fact, however, that it has been asked to judge only four cases and has been critical in relation to three.

The Panel has borne in mind its duty to protect patients and maintain public confidence in the profession. With this duty in mind, and in fairness to you, the Panel considers that it has insufficient information to reach a decision under Rule 17(2)(k). It has therefore determined to exercise its powers under Rule 17(4)(b) to adjourn and direct that an assessment of your professional performance be carried out."

21. This led to some consternation on Miss O'Rourke's part because this had been wholly unexpected and was, she considered, unfair both in the manner of reaching the decision to adjourn and in its effect. She submitted to the Panel that if the Panel was satisfied that there was insufficient evidence to enable it to find that Dr Renga's fitness to practise had been impaired, it had to find that there was no impairment. The Panel decided to set aside its decision on the adjournment and to hear submissions as to whether it should follow that route.
22. After an adjournment Miss O'Rourke then made lengthy submissions as to why it should not do so. She rehearsed the long delay in bringing the case to a hearing. She pointed out that her client had expected the issue of his fitness to practise to have been resolved one way or another when the Panel returned with its unexpected adjournment decision. No adjournment was necessary because if the Panel had insufficient information to find impairment in fitness to practise, that logically was the end of the case; they could only issue a warning.
23. She then faced up squarely to what she thought might have led to the Panel's decision, a concern that there was more that might have been prosecuted or that over the years without work Dr Renga had lost his skills. She submitted that the Panel was not entitled, on either possible view, to search for other evidence. Dr Renga was a responsible person advised by a responsible body who would not practise if he had lost the relevant skills.
24. Mr Pearce responded by saying that fitness to practise involved the exercise of a judgment and so the Panel could return to the issue of fitness to practise. If the Panel concluded that a practitioner was not fit to practise when further information might have led to a different conclusion, the practitioner could not now complain. Mr Pearce equiparated the effect of a decision as contended for by Dr Renga to a finding of abuse of process. I do not follow that submission from Mr Pearce.
25. Mr Pearce pointed out that it was only the Panel which knew what had made the Panel think it needed further information. In my view that unfortunately remained the position in all its decisions. I regard that as regrettable.
26. Mr Pearce suggested that performance assessment would enable the Panel better to judge fitness to practise, and rejected Miss O'Rourke's submissions that it would be unfair because Dr Renga's inability to obtain employment meant that a performance assessment would necessarily show him below his ordinary level of competence. However, in response to Miss O'Rourke's reply, Mr Pearce denied that he was suggesting that, contrary to the GMC's usual stance, fitness to practise should be judged on the basis of an assessment as to current fitness.
27. The specialist performance adviser accepted that part of the performance assessment, based on records, would be difficult to carry out in view of the state of Homerton Hospital; but the second part, namely the skills assessment in relation to professional performance, could be undertaken.
28. The legal assessor said that the Panel should now continue its assessment of whether it had sufficient information to reach a conclusion on Dr Renga's fitness to practise. After a further 3 or so hours' deliberation, the Panel returned. It decided that Miss O'Rourke's submissions on fairness to Dr Renga meant that it should now reverse its decision to seek a performance assessment before reaching a decision on his fitness to practise. However, it had not been persuaded, because of Rule 17(4), that Dr Renga could have expected a decision without a performance assessment. It said this:

"With regard to its considerations on impairment, it must be made clear that sufficient concern was raised by the facts found proved to persuade the Panel that Dr Rengarajaperumal's fitness to practise may be impaired. However, given the small number of cases dealt with during this hearing, it considered it necessary on Friday to pause its considerations to seek further information, by way of a performance assessment, before reaching a decision. This step is set out explicitly in the Rules and was taken by the Panel for two reasons: namely, its duty to protect patients and maintain public confidence in the profession, and also in fairness to the doctor. Your submissions have persuaded the Panel that this balance has been altered and it has concluded that its duty to ensure that Dr Rengarajaperumal is treated fairly is no longer served by adjourning and ordering a performance assessment under Rule 17(4)(b). The Panel takes the view that its position now regarding the consideration of impairment is entirely consistent with that outlined in its determination on Friday."

29. The Panel did not need further submissions on the issue of fitness to practise, but adjourned for further but short consideration. It returned with its final conclusion that Dr Renga's fitness to practise was indeed impaired and, after further submissions, imposed the immediate sanctions to which I have already referred.
30. Miss O'Rourke's essential submissions to this court on the appeal have been quite short. Despite Dr Renga's real misgivings, and Miss O'Rourke's contention that that decision on fitness to practise was borderline, she does not suggest that the decision on impairment could realistically be appealed, had it stood alone without the effect of the sequence of decisions to which I have referred. Her submissions in relation to that were that once the Panel had reached the conclusion that it had insufficient information to decide that Dr Renga's fitness to practise was impaired, as she said it had concluded, that should have been the end of the matter. Although the Panel was not functus, it was perverse for the Panel then to conclude that his fitness to practise was impaired in the absence of additional evidence, and there had been no additional evidence.
31. Further, or alternatively, she submitted that I should infer that the reason the Panel had reached this apparently irrational decision was that it had been influenced by what at this stage was an irrelevant consideration, namely the protection of the public. Although she accepted that the general purpose of the fitness to practise procedure as a whole was the protection of the public and the maintenance of public confidence in the profession, a decision as to whether someone was or was not fit to practise was not in itself to be affected by the need to protect the public or maintain public confidence.
32. Once a conclusion had been reached that someone's fitness to practise was impaired, those considerations would be very relevant to sanction. Here, she submitted, I should infer that the Panel had become concerned by the evidence of Dr Renga, as alluded to by Mr Pearce in submissions on fitness to practise, coupled with the effect of his inability to work, on the current level of his professional skills. Understandable though such concerns might have been, she submitted that the remedy was not legitimately in finding Dr Renga unfit to practise so that sanctions could be imposed, when there was insufficient evidence to find that he was indeed not fit to practise.
33. The Panel should have considered whether there should have been a warning in the event of a finding that he was fit to practise or, less formally, reliance on Dr Renga's sense of responsibility and that of the professional bodies which represented him. I should infer that the irrational Panel decision was caused by an unwarranted finding of impaired fitness to practise in order to give to the Panel power to impose sanctions to deal with the lacuna in the rules. This lacuna was that if, on the facts as at the date of the events in question, impaired fitness to practise was not shown, but there was evidence that the absence of work for a long period indicated that the fitness might now well be impaired, there was no remedy by way of sanction. The Panel's response to that dilemma, by wrongly deciding that Dr Renga was not fit to practise, was unlawful.
34. Mr Chamberlain for the GMC submitted that I should approach the Panel's sequence of decision making on the basis that it had not finally decided that there was insufficient information to hold Dr Renga's fitness to practise impaired when it adjourned for the performance assessment. Alternatively, if it had reached such a conclusion, Miss O'Rourke's submissions to me had recognised that fitness to practise was at large when it reconsidered that issue. In any event, it was entitled to change its mind.
35. It was not suggested by either of the advocates that the Panel was functus at that stage, nor had Miss O'Rourke suggested that the decision, absent the sequence of decision making, was perverse.
36. Mr Chamberlain recognised the possibility that the Panel might initially have thought that a performance assessment would help it decide Dr Renga's fitness to practise, as of now, thinking that if he were now unfit he should be found impaired; and if not now unfit, there was no need to hold that he was unfit because of past failings, particularly in the light of Miss O'Rourke's submissions that the focus of the allegations had been on failings, whereas a performance assessment might have enabled a broader view of his competence to be obtained.
37. Why, submitted Mr Chamberlain, would such an adjournment for a performance assessment have been proposed if otherwise the Panel thought Dr Renga was safe and his fitness to practise unimpaired? They must have been giving him the chance to avoid an adverse finding. Conversely, submitted Miss O'Rourke, why would such an adjournment have been proposed unless they were satisfied on the evidence that there was no impairment of fitness to practise? If they had thought he had been guilty of misconduct leading to impairment, a performance assessment would have been irrelevant, because that only went to deficiency of professional performance. Yet, if that latter was the issue, it had already concluded that it had insufficient information in order to find impairment and so, in reality, had already concluded that fitness to practise was not shown to be impaired.

Conclusions

38. The basis of the appeal here is squarely an error of law through perversity. Insofar as Miss O'Rourke submitted that I should conclude that the gravity of the facts found were not sufficiently serious or persistent to warrant the findings of misconduct or deficient professional performance, or to warrant a conclusion of impairment, I reject it. This was the conclusion of an expert tribunal and, on that matter of evaluation, I would only depart from its conclusions on a clearer basis than exists here. This was not, in any event, the thrust of her submission, but there was discussion of the tests which might be applicable.
39. It is not necessary for me to consider the variety of the authorities on how the High Court should approach an appeal against the decision of an expert tribunal because the decisions here do not turn on how the Panel assessed the calibre of the evidence before it; nor is it necessary to consider the decisions on the gravity of deficient performance or misconduct necessary before a finding is made warranting a further finding of impaired fitness to practise. This is because of the concession by Miss O'Rourke, quite rightly, that the Panel's decision, taken by itself, on those points is not realistically challengeable.
40. Therefore, this case turns on the basis for the Panel's decision. It is for the court, unaided by any reasoning of the Panel, to determine what that reasoning was. Neither advocate is doing more in his or her submissions than putting forward contentions based on what is available to them on the face of the documents. It is regrettable that the various decisions made by the Panel do not contain explicit reasoning as to why the Panel thought a performance assessment would be useful, and why they saw no conflict between saying that further information was necessary in order to reach a conclusion and then reaching a conclusion adverse to Dr Renga without any further information. However, it is necessary for the court to do the best it can with the reasoning which is evinced in the decisions.
41. First, I reject Mr Chamberlain's contention that Miss O'Rourke's submissions to the Panel, after it announced its decision to adjourn for a performance assessment, invited the Panel to, or accepted that the Panel should, reconsider its apparently expressed view on the sufficiency of information. That submission involves, in my judgment, a misreading of the whole thrust of her submissions, which were quite to the contrary effect. Still less did her original submissions invite a performance assessment, whatever the Panel may have made of them.
42. Second, the Panel did not indicate, in its decision finding impairment, that it had changed its mind. Indeed, it thought its two decisions in relation to the need for a performance assessment were consistent with each other. However, had the Panel changed its mind, I can see nothing unlawful in its doing so. It is agreed that the Panel was not functus; the final decision was not in itself irrational, no doubt the issue of fitness to practise could have gone either way; and it was not irrational for the Panel to change its mind about the significance of the evidence from a view it had previously held. It is not suggested that that gave rise to any procedural unfairness either.
43. Third, I do not accept Miss O'Rourke's submissions that I should infer that the Panel was motivated by the irrelevant consideration that if it made no finding of impairment, Dr Renga, deskilled or out of practice, would in theory be able to practice as a consultant orthopaedic surgeon without restriction, and that that explains what she says is the apparent change of mind.
44. I accept that although the protection of the public is the purpose behind the whole structure of the rules, a finding of impairment should not be made, taking into account the need to protect the public. The overall purpose of the rules allows for that in the sequence of decision making its structure sets out. At the sanctions stage it is necessarily a highly relevant consideration. However, it is not a relevant factor to be taken into account at each stage of the decision making.
45. My reasons for rejecting Miss O'Rourke's contentions are these: a court should be very slow to conclude that an express decision that a doctor's fitness to practise is impaired actually contains the conclusion that the doctor's fitness to practise was not impaired but that he had been declared unfit to practise in order to protect the public. That is in reality an allegation of bad faith which, quite rightly, Miss O'Rourke disavows. There is no more than speculation to support that contention anyway. I very much doubt, with all the assistance which the Panel had from its legal assessor, counsel and the legal membership within the Panel that it could possibly have thought such a course of decision making was remotely appropriate. Miss O'Rourke had herself referred to the way in which a warning could be given, which would be quite effective in preventing Dr Renga working before he had reacquainted himself with the necessary skills. That is a course that the Panel could have adopted if they were concerned that he might practise when unfit to do so, if no finding of impaired fitness were made.
46. Miss O'Rourke's emphasis on the Panel's references to the protection of the public as the basis for their conclusion also ignores the other aspect which the Panel consistently mentioned in tandem with public protection. That is, fairness to Dr Renga. I do not regard those as mere words disguising the true thought process. Whatever the Panel had in mind by its references to the protection of the public, it also had in mind serving the interests of fairness to Dr Renga.
47. In my judgment, there are two features which are striking about the way in which the Panel expressed itself. The first is the one that I have just referred to. It was adjourning in the interests of both public protection and fairness, and it reversed its decision in the interests of fairness in the light of Miss O'Rourke's submissions as to the time a performance assessment would take, and the difficulty of it being fair to Dr Renga because of the problems of accessing records and his having been out of work for 3 years. So two interests were involved in their decision making.
48. The second striking feature is that it considered that it was being consistent in its decisions to adjourn and then not to adjourn for a performance assessment. Mr Chamberlain submitted that the reference in the second decision to its earlier conclusion that fitness "may be impaired" showed that it had reached no clear view on the current information as to impairment and that, read with the earlier decision, that showed it also to be expressing no decided view on unfitness but, rather, a desire for further information.
49. I accept that that is a possible reading and, if so, there is nothing unlawful in what the Panel did, but I have some reluctance in accepting that as a complete explanation of the reasoning, although, as I say later, it is in my judgment at least partly right. I say that because the Panel expressed the view that it did not have sufficient information to make a decision, and that it required more information to do so, and yet it did reach a decision without further information. This, expressed in that bald way, gives some plausibility to Miss O'Rourke's contentions that it decided at first that it had insufficient information, and then decided that it was satisfied that it did and that fitness to practise was impaired. However, as I indicated as a possibility in the course of submissions, I conclude that the Panel's reasoning was a little different from all of those possible contentions.
50. The real question is: why did the Panel initially think that it had insufficient information and that a performance assessment would make good that deficiency? A clue to that lies in why it thought a performance assessment would be in the interests of both public protection and in the interests of fairness to Dr Renga. The reference to the former certainly suggests that it had not concluded that Dr Renga was unimpaired in fitness, but rather that the Panel was anxious about the position and needed to know more. The reference to the latter suggests that the information could assist Dr Renga instead, particularly in the light of what Miss O'Rourke submitted about its limited knowledge of his work.
51. After Miss O'Rourke had made the point, albeit with a different purpose, that the Panel had no performance assessment and only had limited knowledge of Dr Renga's work overall, just before retiring to reach its first decision, the Panel had heard the submissions of the legal assessor. This is important. It was to the effect that the judgment as to whether someone's fitness to practise "is" impaired involved looking forward from the position as of now, though using the past as a guide. He drew specific attention to their power to adjourn for a performance assessment.
52. The most logical explanation, to my mind, for what the Panel did is this: in the light of those most recent submissions, it was looking forward and thought that it should not just reach a conclusion based on those occasions where it had made adverse findings of fact. It is quite easy to understand what happened. If the Panel members asked themselves whether they had up-to-date and full information with which to look forward, they would then say that they then had insufficient information to do so. They had insufficient information to answer the question in the way in which they were asking it, in the light of the submissions made. To that end, a performance assessment was sought. It could help protect the public if it showed impaired fitness for the future, but it would also be fair to Dr Renga if it showed that he had a sound overall record and good current skills. In my judgment, that is why it thought that it had insufficient information to answer the question which in reality it was asking itself, and why it thought a performance assessment could provide the answer.
53. That course would be wholly consistent with the view that, if its evidence was confined to the current information, Dr Renga's fitness "may be impaired", and ultimately that it was in fact impaired. It is also consistent with the conclusion that there was no inconsistency between the decisions. More up-to-date information could be useful in confirming or displacing the position that it had arrived at in relation to fitness to practise, based on its findings of fact. Once it accepted Miss O'Rourke's subsequent submissions that seeking a performance assessment would actually be unfair, and they had decided that they were not going to have one, what they said in relation to that second decision becomes quite clear.
54. It explains why the Panel says that sufficient concern had been raised by the facts which it had found, ie looking to the past, to persuade it that Dr Renga's fitness to practise "may be impaired". That reflects the position it had arrived at on those facts, but the Panel had been looking to answer a differently formulated question, focussing on what the up-to-date position was. In my judgment, this explains how the two decisions are properly to be seen as consistent. The difference is that, in relation to the first decision, the question as to fitness to practise was being answered looking more to the future. The second decision was that the answer had to be provided by reference to the presently available information, which comprised only its findings in relation to the three patients. It was that information alone which it then proceeded to consider. The Panel never said that it had insufficient information in order to reach a conclusion on fitness to practise if it had to do so confined to that information, without the option of obtaining a performance assessment.
55. Accordingly, it then retired again, for what was a comparatively brief time, and reached a quite firm conclusion adverse to Dr Renga on fitness to practise. Miss O'Rourke had persuaded them against the step which they had contemplated in part, possibly to assist him. There is nothing irrational or unlawful in that sequence of decision making. There is nothing to suggest the final decision involved an illegitimate consideration of public protection.
56. I am not persuaded at all by Miss O'Rourke that the Panel would initially have found misconduct proved without an adjournment for a performance assessment, if it had sufficient current information to do so. She had submitted that a performance assessment was only relevant to current deficient performance. I reject that line of argument. First, the two issues relied on the same facts, although viewed from a different aspect. Secondly, performance assessment could be relevant to the context of both misconduct and deficient performance. Thirdly, the Panel would only want to reach one decision on impairment, looking together at misconduct and deficient performance. Rather, it seems to me, seeking the performance assessment was more consistent with the Panel having realised that, confined to the presently available information, Dr Renga's fitness to practise might very well be impaired, but were not sure whether more information about the present level of skills could displace that potential adverse conclusion.
57. It seems to me unlikely that the Panel did what it did when it was not satisfied of unfitness to practise and instead sought further information in order that it could find impairment, and then changed its mind in relation to fitness when that further information was not forthcoming.
58. However, whether my analysis or Mr Chamberlain's is correct, or whether the Panel simply changed its mind, which are all possibilities, they are all lawful bases for a decision. I am quite satisfied that there is no proper basis upon which I could conclude that the Panel either acted irrationally or reached the conclusion as it did because it was satisfied that Dr Renga's fitness was not impaired but, concerned about public protection, said that it was. Each of the lawful chains of reasoning are considerably more probable than the unlawful one. This appeal is accordingly dismissed.
59. MR CHAMBERLAIN: My Lord, I would ask for summary assessment of the respondent's costs. Does your Lordship have a schedule?
60. MR JUSTICE OUSELEY: Yes.
61. MR CHAMBERLAIN: Your Lordship can see that there were two schedules handed up at the beginning and they are pretty much in line with each other.
62. MR JUSTICE OUSELEY: Just a moment. The only one I have is --
63. MR CHAMBERLAIN: Can I it hand up? (Handed).
64. MR JUSTICE OUSELEY: Yes.
65. MR CHAMBERLAIN: My Lord, I am instructed that the only thing that does not appear on here is fees in respect of today because this was the schedule that was served in accordance with the Practice Direction before the first hearing. I cannot give your Lordship an exact figure for that. Could I just take instructions? I am told that one should add £235, including VAT, for today. That is just in respect of my fee for attendance.
66. MR JUSTICE OUSELEY: Okay.
67. MR CHAMBERLAIN: So that is what I would ask your Lordship to do in respect of costs. As to the order which your Lordship needs to make, I think I set out in paragraph 13 of my skeleton argument the options. I would simply invite your Lordship to make an order, under section 40 of the Act, dismissing the appeal.
68. MR JUSTICE OUSELEY: Yes. Miss O'Rourke, costs?
69. MISS O'ROURKE: My Lord, costs obviously follow the event. I do not have any submissions to make, bearing in mind that our schedules are pretty similar, I think. On the question of the order, yes, it would be appeal dismissed.
70. MR JUSTICE OUSELEY: The order will therefore be that the appeal is dismissed. The appellant will pay the defendant's costs in the sum of £7,725.34 plus £235 including VAT: £7,960.34. Thank you very much.