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
		24th July 2008

1. LORD JUSTICE DYSON: Dr Russell is a registered medical practitioner who practises as a consultant in child and adolescent psychiatry. The General Medical Council ("the GMC") is the regulatory body for the medical profession and for that purpose maintains a number of panels, including the Fitness to Practise Panel ("the Panel").
2. Dr Russell appeals to this court under section 40 of the Medical Act 1983 against the Panel's decision on 21st November 2007 to suspend her from the medical register for 2 months under section 35D of the 1983 Act. They had found her fitness to practise was impaired by reason of her adverse mental or physical health, namely by reason of a bipolar affective disorder. There is no challenge to that finding.
3. The reason for the suspension was that Dr Russell had breached a condition of her registration that she should abstain absolutely from the consumption of alcohol. The reason for the imposition of that condition was that if there was a change in Dr Russell's mood by reason of her bipolar disorder, alcohol was likely to exacerbate the mood change.
4. There are two grounds of appeal. The first is that Dr Russell was the victim of procedural unfairness in that the Panel reached their decision without indicating to her that they were considering a suspension. The second is that the suspension was disproportionate and wrong.
5. Dr Russell first came to the attention of the GMC in March 2003 as a result of information received from the medical director of Southampton City Primary Care Trust, which raised concerns about her health and fitness to practise. After medical assessments by the GMC, she agreed a series of undertakings in October 2003, which included that she would abstain absolutely from the consumption of alcohol. The GMC had cause to write to her in December 2003 to remind her that her undertaking required her to abstain from alcohol absolutely and not just while she was working.
6. In March 2004 she admitted that she had breached her undertaking by consuming alcohol on more than one occasion. She was suspended by the Southampton City Primary Care Trust at this time. As a result, she was referred to the GMC's health committee, a predecessor of the Panel, which in August 2004 found that her fitness to practise was seriously impaired by reason of her bipolar affective disorder and the harmful use of alcohol. The health committee imposed conditions for 12 months on Dr Russell's registration, which, among other things, required her to abstain absolutely from the consumption of alcohol.
7. The conditions that had been imposed by the health committee were considered by the Panel on 1st August 2005. They decided again that Dr Russell's fitness to practise was seriously impaired by reason of her bipolar affective disorder and harmful use of alcohol. They reimposed conditions on her, which included that she should abstain absolutely from the consumption of alcohol. At that hearing, however, the Panel said that they were pleased to note her compliance with the conditions and were encouraged by her progress.
8. The Panel reconsidered the matter in August 2006 and again decided that Dr Russell's fitness to practise was impaired by her bipolar affective disorder, which was then in remission. The Panel found that she had complied with all the conditions imposed on her registration at the previous hearing in August 2005, but, yet again, they imposed conditions on her for 12 months, which included that she should abstain absolutely from the consumption of alcohol.
9. Between August 2006 and May 2007 she had no GMC-appointed medical supervisor but, following her move to Newcastle, she was under the supervision of Dr Gilvarry.
10. She appeared again before the Panel in August 2007. After hearing evidence and giving a decision on fitness to practise, the hearing was adjourned until 21st November 2007, when the decision which is under appeal was taken. The Panel had a number of medical reports. Her treating psychiatrist, Dr Williams, wrote a report dated 9th July 2007. He said that she had been well during the last 12 months. He noted, however, that she had breached the condition that she should abstain from alcohol. He said that she had told him that she had consumed approximately four bottles of wine over a period of 2-3 days in August 2006, shortly after the previous hearing. Through her counsel, Ms Powell, she told the Panel that she had consumed four glasses of champagne over a weekend and not four bottles of wine.
11. Dr Williams said that there was no evidence that her consumption of alcohol had affected her ability to practise as a doctor. He had no concerns with regard to her fitness to practise.
12. The Panel also had a letter dated 25th June 2007 from Dr Humphries, director of development, education and research for Tees, Esk and Wear Valley NHS Trust. He said that she had admitted that she had been drinking more than 14 units of alcohol per week over what the Panel referred to as a "circumscribed period" but that she was now sober and functioning well. Ms Powell told the Panel that Dr Russell had told Dr Humphries that she had been drinking well under the recommended maximum for a woman of 14 units of alcohol per week.
13. There was a report dated 10th July 2007 by Dr Gilvarry. He recorded that she had told him that she had abstained absolutely from drinking alcohol, but he said that he was later told by Dr Williams that she had drunk socially within safe limits.
14. The Panel also had a report by Professor Eccleston dated 27th July 2007. He said that Dr Russell had told him that she had consumed alcohol socially over the previous 12 months, but no more than 6 units per week, and that she had not consumed any alcohol since June 2007. He concluded that her fitness to practise was impaired by reason of her bipolar disorder and that she was fit to practise under medical supervision.
15. The Panel also considered a report by Dr Dunleavy, a consultant psychiatrist who said that there was still a problem with Dr Russell's noncompliance with the condition that she should abstain from alcohol. Dr Dunleavy thought that her fitness to practise was impaired by reason of her bipolar disorder and "the possible harmful use of alcohol". He added that in view of the difficulty with abstinence from alcohol, it was essential that she should also remain under the care of a separate specialist in the field of addiction.
16. The Panel also had two letters from Dr Russell's general practitioner, Dr Hughes, which noted that Dr Russell had consumed alcohol in small amounts on social occasions.
17. Dr Bradley had written a report dated 29th August 2007. He is a consultant psychiatrist who examined Dr Russell at the request of her solicitors. He diagnosed her as suffering from bipolar disorder and was reluctant to make a diagnosis of harmful use of alcohol. He considered that while she should abstain from alcohol altogether, to make this a condition of her medical registration might be counterproductive. He noted that her alcohol consumption had remained within acceptable limits in recent years.
18. The Panel's specialist health adviser told the Panel that he agreed with Dr Bradley and that a diagnosis of harmful use of alcohol could not be sustained at the present.
19. Having considered the evidence, the Panel found on 31st August 2007 that Dr Russell's fitness to practise was impaired by her bipolar disorder, which was then in remission, and that she had not complied with the condition of absolute abstinence from alcohol since August 2006. They then invited submissions as to the appropriate sanction to impose and took advice from a specialist health adviser and a legal assessor. I shall return to these submissions and the advice a little later.
20. The Panel then adjourned the hearing until 21st November 2007, when the chairman announced the Panel's decision as to sanction. Having summarised the position with regard to the bipolar disorder, the chairman said this:

"The Panel has given consideration to the seriousness, and your culpability in your admitted breach, of the condition imposed on your registration, to abstain absolutely from the consumption of alcohol. It notes that you had breached a GMC undertaking, by which you had agreed to abide in 2003, to abstain absolutely from the consumption of alcohol, which led to your initial referral to the GMC's Health Committee. Ms Powell said that, in 2004, you realised that you should be completely abstinent and that this might not be easy. You did comply with the conditions imposed in 2005 but you did not fully comply with the conditions imposed in August 2006; specifically, you have admitted to the consumption of alcohol.

The Panel has also noted that you were not truthful with your medical supervisor, Dr Gilvarry, appointed on behalf of the GMC, when you told him in July 2007 that you had abstained from the consumption of alcohol. Ms Powell, on your behalf, told the Panel that you deeply regret not being frank with Dr Gilvarry.

The Panel considers that any breach of a condition imposed by your regulatory body, namely the GMC, should be considered as serious. In considering where your breach lies in the scale of seriousness, it has noted that you have admitted that you have consumed alcohol on three occasions since August 2006. You told the Panel in August 2007 that you had been abstinent for approximately six weeks and Dr McAllister Williams said that you reported no alcohol intake since the start of this hearing in August. However, the Panel is concerned that you do not appear to fully understand the seriousness of the requirement to comply with conditions imposed by the GMC. In making this statement, the Panel does recognise that you have complied with all other conditions.

The Panel has also had regard to the public interest issues raised by your breach of the current conditions. It heard the advice from the legal assessor in August 2007 that the Panel can consider whether a breach of a condition is so serious as to be culpable in order to constitute a failure to comply with the requirements of the GMC.

The Panel has considered whether it would be sufficient for the protection of patients, members of the public, the public interest and in your own interests to place conditions on your registration for a further period. In doing so it has had regard to the issue of proportionality of the GMC's Indicative Sanctions Guidance (April 2005).

The Panel has taken into account the initial breach of your undertakings, and the subsequent breach of your conditions. On both occasions the breach related to abstinence from alcohol.

The Panel is very concerned that you have consumed alcohol on several occasions, despite giving an undertaking that you would not, and despite the clear terms of the conditions previously imposed. The Panel considers that it would compromise the integrity of the regulation of the medical profession if it were once again to impose conditions on your registration, knowing that you have, on previous occasions, not complied with conditions. For these reasons, the Panel has concluded that, based on the information presented on 21st August 2007 and at the reconvened hearing today, it would be insufficient to conclude this case by extending the conditions on your registration.

The Panel considers that it must send a clear signal to you and the profession that conditions imposed by a Fitness to Practise Panel must be complied with. This is fundamental to the maintenance of public confidence in the profession and confidence in the regulatory process. The Panel has the power to direct suspension for up to 12 months. It considers that it would be disproportionate to direct suspension at the top end of the scale. It has concluded that it is sufficient to send a signal to you and the public that conditions must be complied with by imposing suspension for two months. The Panel considers this to be sufficient time for you to reflect on the absolute necessity to comply with conditions.

The Panel wishes to make it clear that, had you not breached the condition imposed by the previous Panel to abstain from alcohol, it would have been minded to impose a sanction of conditional registration."

I now turn to the two grounds of appeal.

The procedural challenge

21. As I have said, having announced the findings of the Panel on fitness to practise, the chairman invited submissions on the question of sanction. Mr Williams for the GMC submitted that the sanction should "at the least" be one of conditions on the registration, but he also made express reference to the section of the Indicative Sanctions Guidance for Fitness to Practise Panels, which deals with suspension from practice.
22. Ms Powell, counsel for Dr Russell, made lengthy submissions on the question of sanction in which she expressly addressed the question of suspension. She said that she accepted that it was appropriate for Dr Russell to continue to be subject to conditions if the Panel thought it fit to impose them. She said that she was not going to urge the Panel to relax the alcohol abstinence condition. She submitted, however, that the breach of the conditions was not serious and there was no evidence to suggest that the consumption of alcohol had in any way impacted on her ability to fulfil her professional obligations as a consultant psychiatrist.
23. She then said this:

"Mr Williams has in passing, if I may put it like that, referred to suspension, very much in passing. I would submit that suspension in these circumstances would be wholly disproportionate, and indeed would not be in the public interest. Dr Russell has for the past twelve months since the last review hearing provided a good clinical service, and has not been criticised for that. Her ability to provide that service has not been jeopardized by the breaches of Condition 4, in the professional opinion of those who have provided you with reports. [Condition 4 was the condition in relation to abstinence from alcohol consumption].

It would, in my submission, be a disaster for this doctor if this Committee were to take such a harsh view of circumstances that they were to impose suspension. She has struggled long and hard against a debilitating condition, to her considerable credit, and has achieved a position of considerable stability. It is a condition that is susceptible to recurrence, particularly when under stress, and it is greatly to be hoped that she will be allowed to continue in the progress that she has made in continuing her professional development that she has achieved thus far."

24. The Panel then invited the specialist health adviser and the legal assessor to make observations. The specialist health adviser noted that the difficulty was to determine the extent to which the use of alcohol might bring about a further deterioration during the period of an episode, whether manic or depressive. The majority of the expert medical advice advocated abstinence. Dr Bradley thought that ideally Dr Russell should abstain, but he implied that there might be circumstances where she could drink, although the matter was not clear. In response to a question from the medical member of the Panel, the specialist health adviser said that the correct approach was to follow the main body of medical opinion. The legal assessor informed the Panel of their powers, which included the power to suspend. He said that they would have to consider suspension if they felt that the breach was sufficiently serious. Both advocates were then given an opportunity to comment on the observations of the specialist health adviser and the legal assessor. Both declined.
25. Miss O'Rourke, who appears for Dr Russell today, submits that there was procedural unfairness in this case in that:

(1) the Panel gave no indication that a short suspension might be under consideration by them;

(2) Ms Powell was not invited to deal with the potential effects of a suspension on Dr Russell; and

(3) She was not invited to address the Panel as to the proportionality of even a short suspension when looked at in the context of Dr Russell's personal and employment circumstances.

26. Ms O'Rourke seeks to adduce fresh evidence before this court, comprising a witness statement by Dr McAllister Williams dated 22nd July 2008 and a letter from Dr Fisher, the medical director of the Tees, Esk and Wear Valley NHS Trust. The former includes this statement:

"4. It is impossible to predict how the appellant would respond to the stress of suspension if this happens. However, it is clear to me from my contact with the Appellant that she is highly committed to her career in medicine. As a result, it is fairly clear that she would find any threat to her [career] extremely distressing and stressful. There is a very strong likelihood that such stress would lead to a destabilisation of her condition and potential relapse into a significant episode of mood disturbance. My specific concern therefore is that suspension could lead to a relapse of the Appellant's illness thus exacerbating any potential threat to her very future in medical employment. Had I been asked earlier to express an opinion on these issues, I confirm that I would have done so in these terms."

27. The letter of 23rd July 2008 makes a number of points, including the point that the suspension of Dr Russell will, in the opinion of Dr Fisher, adversely affect the delivery of healthcare in the specialist field in which Dr Russell practises, namely child learning disability. The concluding paragraph of the letter is in these terms:

"I had wondered if the GMC had considered this knock-on effect when they imposed the suspension in the first place. I had intend to write to them expressing my concern for a form of punishment that had significant negative effects on the employing organisation once the case had been finalised."

28. I am not prepared to admit this evidence. First, it seems to me that it could, with reasonable diligence, have been obtained before the August hearing, and certainly before the November hearing. Accordingly, the first of the three Ladd v Marshall principles has not been satisfied. The possibility of a suspension was, or should have been, obvious in the light of what was said at the August hearing, if not in any event.
29. I would endorse what Collins J said in Watson v GMC [2006] EWHC 18 (Admin) at paragraph 13:

"13. The report of the psychiatrist was not agreed by the Respondent and so it would have been necessary to have him called and cross-examined if I were to accede to Mr Powell's submission. The fact that the appellant had not been advised that it would be helpful to obtain such a report cannot justify an attempt now to fill the gap. Fault of his advisers, if such there was, does not provide a good reason for introducing new evidence."

30. I would also endorse what Blake J said in Abrahaem v GMC [2008] EWHC 183 (Admin) at paragraph 34:

"34. I refused the application to admit the fresh evidence because:-

a. The admission of fresh contested evidence is very much the exception in s.40 appeals and would require compelling justification...

c. The evidence could plainly have been obtained and placed before the GMC for comment and response long before now and might well have triggered a discretionary review of the conditions and an examination of the accuracy of the assertions therein..."

31. Ms O'Rourke makes the point that neither of these two cases was a health case. They were either conduct or performance cases, but in my judgment that difference is not material for present purposes. In any event, I do not consider that the fresh evidence adds or adds significantly to what must have been the Panel's understanding of the position.
32. I cannot accept that there was any procedural unfairness in this case. As Mr Hare points out, there is no authority for the proposition that the Panel, or a body performing similar functions, has to draw to the parties' attention the fact that it is minded to impose any particular form of sanction. The parties are invited to make submissions to the Panel on the full range of sanctions available to it. Regardless of what was said at the hearing, Ms Powell knew, or ought to have known, that suspension was one of the possible sanctions: see section 35D(10)(b) of the 1983 Act.
33. There was no unfairness in not informing her that this was one of the possible sanctions and that she should consider making submissions in relation to that sanction. If Dr Russell had not had legal representation, the position might have been different, but this complaint falls, in any event, on the facts. The possibility of suspension was canvassed by Mr Williams and the legal assessor. Above all, Miss Powell made submissions to the Panel as to why a suspension should not be imposed. She argued that it would be disproportionate and not in the public interest. She said that it would be a disaster for Dr Russell, a person who had struggled long and hard against a debilitating condition.
34. If Ms Powell had wished to elaborate on the respects in which it would be a disaster for Dr Russell to be suspended, she had the opportunity do so. It is obvious that Dr Russell, or at least her legal representative, knew her suspension was a possibility. It was one of the available sanctions, and it was clear from what was said that its imposition could not be excluded. That is why Ms Powell dealt with it in her submissions.
35. In my judgment the Panel was under no obligation to invite Ms Powell to expand on the impact that a suspension would have on Dr Russell's health and her employment circumstances, or to invite her to seek an adjournment for the purpose of obtaining evidence directed to that issue. I accept Mr Hare's submission that the procedure before the Panel is essentially adversarial; it is not inquisitorial. Rule 22 of the General Medical Council (Fitness to Practise) Rules 2004 No 2608 provides so far as material:

"(d) the practitioner may present his case and may adduce evidence and call witnesses in support of it;

(e) the FTP Panel shall receive further evidence and hear any further submissions from the parties as to whether the fitness to practise of the practitioner is impaired or whether the practitioner has failed to comply with any requirement imposed upon him as a condition of registration...

(g) the FTP Panel may receive further evidence and hear any further submissions from the parties as to its decision whether to make a direction under section 35D(5), (6), (8), (10) or (12) of the Act..."

36. It is for the parties and not for the Panel to decide what evidence to adduce. There was no unfairness here. At any time before 21st November 2007 Ms Powell could have sought to adduce further evidence and/or make more submissions on the question of whether a suspension was disproportionate, having regard to its likely impact on Dr Russell's health and employment circumstances. Instead, Ms Powell was apparently content to confine herself to the brief submissions that she made on the point. In any event, as I have said, the Panel were aware of Dr Russell's mental condition, they must have known, as it seems to me, that there was a risk that a suspension would cause her to suffer significant stress, which might bear particularly harshly on her, having regard to her mental condition.

The substantive challenge

37. The correct approach to be followed by this court when hearing an appeal against the imposition of sanctions by GMC Panels has been the subject of previous authority. In relation to pre-2003 appeals, the approach of the Privy Council was set out in Dad v General Dental Council [2000] 1 WLR 1538/1542C per Lord Hope:

"It is well established, for very good reasons, that the Board will not interfere with the exercise of the discretion of the Professional Conduct Committee in matters relating to penalty. The assessment of the seriousness of the misconduct upon proof of a conviction is essentially a matter for the committee, in the light of their experience of the range of cases which come before them. They are best qualified to judge what measures are required to maintain the standards and reputation of the profession and to assess the seriousness of the misconduct. As a general rule therefore the Board will be very slow to interfere with decisions of the committee on matters relating to penalty."

38. These principles were recently affirmed and applied to appeals to the High Court, following the change in regime by the Court of Appeal in Raschid v GMC [2007] EWCA Civ 46 ([2007] 1 WLR 1460) at paragraphs 16 and following by Laws LJ. He said:

"16. In these circumstances it seems to me to be clear that we should follow the guidance given in the cases decided before the change in the appeal system effected on 1 April 2003. First, the Privy Council is of course a source of high authority; but secondly, we are in any event considering an effectively identical statutory regime. As it seems to me there are in particular two strands in the relevant learning before 1 April 2003. One differentiates the function of the Panel or committee in imposing sanctions from that of a court imposing retributive punishment. The other emphasises the special expertise of the Panel or committee to make the required judgment.

17. The first of these strands may be gleaned from the Privy Council decision in Gupta v the GMC [2002] 1 WLR 169, 1702 at paragraph 21 in the judgment of their Lordships delivered by Lord Rodger of Earlsferry:

'It has frequently been observed that, where professional discipline is at stake, the relevant committee is not concerned exclusively, or even primarily, with the punishment of the practitioner concerned. Their Lordships refer, for instance, to the judgment of Sir Thomas Bingham MR in Bolton v Law Society [1994] I WLR 512, 517-519 where his Lordship set out the general approach that has to be adopted. In particular he pointed out that, since the professional body is not primarily concerned with matters of punishment, considerations which would normally weigh in mitigation of punishment have less effect on the exercise of this kind of jurisdiction. And he observed that it can never be an objection to an order for suspension that the practitioner may be unable to re establish his practice when the period has passed. That consequence may be deeply unfortunate for the individual concerned but it does not make the order for suspension wrong if it is otherwise right. Sir Thomas Bingham MR concluded, at p 519: "The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is a part of the price."

Mutatis mutandis the same approach falls to be applied in considering the sanction of erasure imposed by the committee in this case.'"

39. Ms O'Rourke submits that the Panel erred in not addressing the impact of a suspension on Dr Russell's employment position and in not considering whether the effects in her particular employment and personal circumstances would be disproportionate to the nature of the breach of the condition in question. Further, she submits, it was wrong to impose a suspension for reasons unrelated to her personal circumstances, namely as an example to others in the profession as to the importance of compliance with GMC conditions. That was a decision which no reasonable and responsible Panel could have made in the light of the expert evidence before them and all the circumstances of the case.
40. I am afraid that I cannot accept these submissions. In my judgment the Panel were entitled to decide what sanction to impose on the basis of the evidence that had been adduced and the submissions that had been made to them. Dr Russell was represented by solicitors experienced in the field, as well as by counsel. As I have said, the Panel would have known that there was a risk that Dr Russell's health would be adversely affected by the stress engendered by a suspension. They did not need evidence for that. Nor did they need evidence to prove that a suspension might harm her in her employment.
41. In determining proportionality the Panel also had to have regard to the public interest and to the need to maintain the standards and reputation of the profession. I cannot accept that the Panel were wrong to place weight on the public interest and the need to have regard to the standards and reputation of the profession. That plainly was a very important factor to be weighed in the balance when considering the question of proportionality. The Panel did precisely that. This court will always be slow to interfere with a decision of a Panel of this kind in such circumstances, for the reasons stated in the authorities to which I have referred.
42. In my judgment there is no substance in the complaints of the substantive decision that was made here. Once the complaint of procedural unfairness is rejected, it seems to me that the sting is taken out of the challenge to the substantive decision as well. That challenge only has any possible validity insofar as the decision was taken by the Panel without considering evidence which was not placed before them. Once it is accepted that the Panel was entitled to proceed without such further evidence, it seems to me that there is nothing left in the substantive challenge.
43. Naturally, I have great sympathy for Dr Russell, she suffers from a serious disorder which happily, at the present time, is in remission. No doubt the Panel also had sympathy for her, and that may well be why they decided to impose only a short period of suspension. I hope that the dismissal of her appeal will not cause her to suffer undue stress, and I certainly hope that it will not cause any deterioration in her mental state, but, whatever my feelings of sympathy may be for Dr Russell, I trust that she will understand that I have to apply the law and well established legal principles. Applying that law and those principles, I am quite satisfied that there is nothing wrong with this decision. Accordingly, I must dismiss this appeal.
44. MR HARE: My Lord, I have an application for the GMC's costs. I think this is an appropriate case both for the award of costs and for your Lordship to proceed to assess them summarily. There has been a schedule of costs which has been handed to the other side this morning. I think an attempt was made to serve it yesterday. It may not be before your Lordship and, even if it is, I am afraid to report that the original version is not accurate. So I have attempted to update it. I have also explained that to my learned friend.
45. LORD JUSTICE DYSON: I would like to hear what Ms O'Rourke has to say.
46. MS O'ROURKE: I do not have a copy of it, my Lord, either the original one or the updated one. I have seen it. Mr Hare has shown me the figures, he has pointed out to me that he needed to update it because no fee was put in for his attendance today and I recognise immediately, on looking at the figures, that is the case. My Lord, can I shorten it by saying, firstly, I cannot resist the application for costs and, secondly, bearing in mind the sum my learned friend has on his schedule is rather less than the sum on our schedule, I cannot resist the sum either.
47. LORD JUSTICE DYSON: The fact that it is less than yours is not necessarily determinative of the matter.
48. MS O'ROURKE: No, my Lord.
49. LORD JUSTICE DYSON: I think I better have a look at it.
50. MS O'ROURKE: My Lord, I think it is put in the context of the underlying work that we would have to do as appellants in this case, and the lodging et cetera, though I could not start to argue his sum is unreasonable.
51. LORD JUSTICE DYSON: I see why you say what you say. This is the figure is it, £4666.75?
52. MR HARE: That is correct.
53. LORD JUSTICE DYSON: Very well. Appeal dismissed with costs set at £4,666.75. Thank you both very much.