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
		10th October 2008

1. MR JUSTICE MITTING: Professor Stefan Zygmunt appeals against three determinations of the GMC's Fitness to Practise Panel: (1) On 11th April 2007 that his conduct was inadequate, not in the best interests of a patient (Patient A) and fell significantly short of the standards to be expected of a responsible medical practitioner.

(2) On 17th October 2007 that his fitness to practise was impaired.

(3) On 19th October 2007 that the sanction of two months suspension from the Register of Medical Practitioners should be imposed.

2. This appeal is by way of rehearing: see 52PD 116(2). I must allow the appeal if persuaded that the decision of the panel was wrong: CPR 52.22(3)(a) and GMC v Meadow [2006] EWCA Civ 1390 paragraphs 125. Because its findings involve judgments about the reliability and truthfulness of witnesses who gave oral evidence in front of it, I must accept its findings of fact unless material errors are clearly demonstrated; and because in determining sanctions, once misconduct and impairment of fitness to practise were found, the Panel is exercising a discretion entrusted to an experienced specialist body, albeit chaired by a lay member and containing an equal number of lay and professional members, I must give special place to its judgment: Fatani and Rashid v GMC [2007] EWCA Civ 46, paragraphs 20 and 26.
3. The statutory framework is contained in sections 35C and D of the Medical Act 1983 inserted with effect from 1st November 2004 by the Medical Act 1983 (Amendment) Order 2002, SI 2002/3135. Where an allegation that the fitness to practise of a registered person is made to the GMC, the Investigation Committee must investigate and decide whether or not to refer to the Fitness to Practise Panel: section 35C (1) and (4). If it does, the Fitness to Practise Panel decides whether the allegation is made out -- at the time of these hearings to the criminal standard. Where it finds "that the person's fitness to practise is impaired" (my emphasis), it may direct erasure, suspension or conditional registration: section 35D(2). Where it finds that it is not impaired, it "may nevertheless give him a warning regarding his future conduct or performance": section 35D(3).
4. Section 35C(2) sets out the circumstances in which impairment of fitness to practise may be found:

"(2) A person's fitness to practise shall be regarded as "impaired" for the purposes of this Act by reason only of --

(a) misconduct;

(b) deficient professional performance;

(c) a conviction or caution in the British Islands for a criminal offence, or a conviction elsewhere for an offence which, if committed in England and Wales, would constitute a criminal offence;

(d) adverse physical or mental health; or

(e) a determination by a body in the United Kingdom responsible under any enactment for the regulation of a health or social care profession to the effect that his fitness to practise as a member of that profession is impaired, or a determination by a regulatory body elsewhere to the same effect."

5. When, as here, professional conduct is in issue, it is the invariable practice of the Panel only to determine that fitness to practise is impaired if serious professional misconduct has been proved, applying the statutory test in force before 1st November 2004: see the advice of the legal assessor on 17th October 2007 at page 406 E to F in the transcript, relying on Auld LJ's observations at paragraph 198 that it is "inconceivable that "misconduct -- now one of the categories of impairment of fitness to practise provided by section 35C of the Act -- should signify a lower threshold for disciplinary intervention by the GMC". It may take the form of "incompetence or negligence of a high degree" (paragraph 201).
6. On a natural reading section 35C(2) introduces a test with two elements: first, fitness to practise must be impaired; secondly, by reason of one of the five circumstances set out in subsections (a) to (e). Whether or not this is so, and if so what effect it should have on the Fitness to Practise Panel's decision, I will consider later.

The Facts

7. Patient A, a 48-year old man was admitted to Solihull Hospital, an National Health Service hospital, on 17th March 2001 complaining of headaches and vomiting. The admitting consultant was Dr Sandler, a consultant physician. The house officer's differential -- or in the way in which the word is used in this instance, working -- diagnosis, was viral meningitis. Dr Sandler suspected a tumour or abscess and arranged for a CAT scan to be performed. It revealed an oval lesion in the right frontoparietal area. Mr Josan, the neurological registrar, considered that the scan probably revealed a tumour rather than an abscess.
8. Patient A was transferred to the Priory Hospital, a private hospital, at the insistence of his family. He was seen by Professor Zygmunt on 18th March 2001. His provisional diagnosis was set out in a note of the same date:

"Thanks for asking me to see this pleasant but unfortunate man that as you know has presented with a three week story of imbalance, headache and intermittent fever. The recent scan shows a posterior basal intrinsic looking lesion on the right side. Although an abscess is unlikely, an infectious cause cannot completely be ruled out. I do feel a further scan (MRI) would be helpful. At the end surgery is likely to be needed but beforehand his infection needs to be dealt with."

He arranged for an MRI scan.

9. Patient A was from then under the joint care of Dr Sandler and Professor Zygmunt. Dr Sandler directed the continued administration of intravenous antibiotics to treat an infection, even though there was then no further diagnosis as to what its source was. A consultant neuroradiologist, Dr West, recorded on the MRI scan:

"There are appearances of intrinsic tumour and a high grade glioma seems likely. The ragged walls of this lesion make pyogenic abscess unlikely, but tuberculous abscess is a remote possibility."

Thus, as at 18th March 2001 the diagnosis of two neurosurgeons, Professor Zygmunt and Mr Josan, and one neuroradiologist, Dr West, was that the lesion was a tumour not an abscess.

10. On 21st March 2001 Professor Zygmunt again saw Patient A and wrote a further note to Dr Sandler:

"The MRI scan shows as you know the lesion identified with [ie, by] the CT. Unfortunately it looks intrinsic but once he is over his current infection a partial removal would be possible. I will see him in clinic at the Priory 3/4/01."

The reference to the clinic was to the outpatient clinic attached to the Priory Hospital. This is the last reference to Patient A by Professor Zygmunt in the clinical notes. Professor Zygmunt went on a pre-booked skiing holiday on 23rd March 2001. On 22nd March 2001 Dr Sandler noted that Patient A's temperature was level and that he was well. He directed that he should be discharged home on Saturday 24th March 2001.

11. On 26th March 2001 he wrote to Patient A's general practice:

"This gentleman was admitted as an emergency to Solihull Hospital with pyrexia and right frontal headache. An urgent CT scan was undertaken prior to proceeding to a lumbar puncture demonstrated a lesion which was thought to be either a cerebral abscess or tumour. Discussion with a neurosurgeon led to the conclusion that this was likely to be a tumour and that the pyrexia was due to an alternative infection. A diagnosis of upper respiratory tract infection was made and he was treated with intravenous antibiotics. He and his family chose for him to be moved to the Priory Hospital, Edgbaston, for further management.

Consultant Neurosurgeon, Mr S C Zygmunt was kind enough to see the patient, review the scan and agreed that this was an infiltrating glioma requiring further surgical treatment after the present infection had resolved.

He was therefore managed on intravenous antibiotics during the subsequent week along with Dexamethasone for the oedema and headache. By the end of the week he had recovered substantially and was able to be discharged home on 24th March.

The patient will have outpatient review by myself and Dr Zygmunt on 30th March and 3rd April respectively with a view to subsequent readmission for surgical intervention and thereafter for consideration for radiotherapy."

The outpatient appointments did not take place.

12. On 29th March 2001, Patient A collapsed at home and was admitted to North Staffordshire Hospital. A CT scan showed signs of an infected abscess. An emergency operation was performed but he deteriorated on 16th May 2001 and was declared dead two days later. It was no part of the case against Professor Zygmunt that any failing on his part caused or contributed to the death of Patient A.

Issues before the Fitness to Practise Panel

13. As is customary, the allegations into which the Panel enquired were set out in a detailed document, sometimes referred to as the charge sheet. Paragraphs 1 to 8 record the claimed facts. Paragraphs 9 and 10 set out the respects in which it was alleged that Professor Zygmunt was guilty of serious professional misconduct categorised in three overlapping categories: conduct that was inadequate, not in accordance with the best interests of Patient A, and which fell significantly short of the standards to be expected of a reasonable medical practitioner.
14. Paragraph 9 sets out the heart of the case against him:

"9. Prior to your going on leave on or about 23rd March 2001 you --

a. did not properly maintain on your differential diagnosis of Patient A's condition the realistic possibility that the lesion might in fact be an abscess rather than a tumour,

b. did not formulate a management plan to the effect that Patient A should in fact,

(i) remain an in-patient at the hospital,

(ii) remain on continued intravenous

antibiotics

(iii) be subject to close neurological

observations.

(iv) be rescanned after five to eight days

further to assess the lesion.

c. did not record in Patient A's notes any in-patient management plan at all,

d. did not inform Dr Sandler orally or otherwise that that Patient A should remain an in-patient on intravenous antibiotics,

e. did not establish appropriate neurological cover,

f. did not inform Dr Sandler,

(i) that you were to be absent from the hospital on leave for the period from on or about 23rd March 2001 to on or about 1st April 2001,

(ii) to whom Dr Sandler should refer for a

consultant neurosurgical opinion during

your absence from the hospital on leave,

g. did not make an appropriate record informing your medical colleagues with the immediate care of Patient A that,

(i) you were to be absent from the hospital on leave, and

(ii) of any arrangement you had made to cover your absence on leave."

15. Professor Zygmunt admitted 9(a), 9(b)(iii) and (iv), 9(c) and 9(g)(i). The Panel found that 9(4) did not amount to misconduct and it did not find 9(f)(i) to be proved. It did find 9(b)(i) and (ii), (d), (e), (f)(ii) and (g)(ii) to be proved.
16. Omitting the allegations which were dismissed, 9(b)(iv) and (f)(i), the case against Professor Zygmunt contained four essential elements:

(1) He did not maintain a "differential", ie, alternative working diagnosis that the lesion might be an abscess not an tumour.

(2) He did not direct that Patient A should remain an in-patient at the Priory Hospital on intravenous antibiotics until his return from holiday.

(3) He did not record that, or any, management plan in the clinical notes or otherwise in writing.

(4) He did not arrange for neurosurgical cover during his absence and inform Dr Sandler who was to provide it.

17. The Panel's own summary of its findings given at the fitness to practise stage of its inquiry was:

"Professor Zygmunt failed to maintain abscess on his differential diagnosis. In any event, he should have devised a management plan which he should have recorded and communicated to the other healthcare professionals charged with the care and treatment of Patient A. That plan should have provided for, at the least, continued intravenous antibiotic treatment as an in-patient. Dr Sandler and others would then have been clear about Professor Zygmunt's intentions for the management of Patient A. The plan should also have indicated who would be responsible for providing neurosurgical cover during Professor Zygmunt's absence."

18. In my categorisation of the four elements, he admitted (1) and (3) and does not now dispute the Panel's finding that (4) was proved. Accordingly, though the challenge to the reasoning supporting the finding of serious professional misconduct is wide ranging, the real issues are now quite narrow:

(1) Is the Panel's finding on element (2) supportable?

(2) If not, may it make any difference to the findings of serious professional misconduct?

(3) Was a finding of serious professional misconduct justified on the facts admitted or found?

The First Issue

19. Professor Zygmunt's evidence, which the Panel found in significant respects to be untruthful or unreliable, was that he had recommended to and agreed with Dr Sandler that Patient A should remain an in-patient on intravenous antibiotics until his return. Dr Sandler denied it. The Panel accepted his denial, supported as it was by the absence of anything in Dr Sandler's notes to support Professor Zygmunt's evidence. Its finding was trenchant and unimpeachable:

"The Panel found that it was inherently improbable and perverse that Dr Sandler would have directed and recorded that Patient A's antibiotic treatment be discontinued contrary to the expressed opinion of a fellow consultant, who had shared care of the patient, without recording his reasons for so doing. In fact, the Panel concluded that Professor Zygmunt had considered that the provision of antibiotics was the province of Dr Sandler."

20. It then found that the fact that Professor Zygmunt did not so instruct Dr Sandler amounted to misconduct. Its findings are contained at three places in its determination, reflecting the three sub-headings of misconduct which it was considering:

"5.13. Allegation 9(d)

The Panel found Professor Zygmunt's conduct inadequate in light of the requirement in 'Good Medical Practice' (July 1998 edition) to --

'keep colleagues well informed when sharing the care of patients" and 'work with colleagues in the ways that best serve the patient's interests' . . .

5.17 . . . .

Allegation (d)

The Panel finds that it would have been in Patient A's best interests had Professor Zygmunt informed Dr Sandler, explicitly, that he wished Patient A to remain an inpatient undergoing treatment with intravenous antibiotics . . .

Allegation 9(g)

The Panel had regard to the requirements of 'Good Medical Practice' as detailed in paragraph 5.13 above."

It also noted, when considering allegations 9(b)(i) to (iv) Professor Zygmunt's own evidence that a patient with a glioma should not be sent home and that he wished Patient A to be maintained on intravenous antibiotics.

21. The reasons quoted verbatim support the finding that Professor Zygmunt did not communicate to Dr Sandler and others, by clinical notes, his claimed intention that Patient A should remain an in-patient and be administered intravenous antibiotics. That appears to have been what paragraph 9(d) was intended to allege. If so, the Panel should have reminded itself of its own finding in paragraph 5.5 that Professor Zygmunt had concluded that the provision of antibiotics was the province of Dr Sandler so that the basis for a finding that he did not communicate his own view was not there. In fact, as the extract from the fitness to practise findings at page 70 (already noted) make clear, the Panel found that Professor Zygmunt should have formulated a plan which "should have provided for, at the least, continued intravenous antibiotic treatment in hospital". The only basis for this finding was Professor Zygmunt's own evidence that that is what he prescribed.
22. The independent neurosurgeon, Dr Davies, who was the only other witness to deal with the issue, was asked a direct question by counsel for the GMC in-chief at page 237:

"Q. Should he have remained an in-patient with intravenous antibiotics in that time?

A. Very difficult question. Ideally, with hindsight, yes, but putting myself into that position, I think there was a case for sending him home. It is quite common to send patients home with this kind of malignant brain tumour, or suspected malignant brain tumour. They benefit from high dose steroids, you want them in the best possible shape for an elective surgical procedure, so sending people home for short periods of time is reasonable practice."

He repeated the gist of his answer at page 238 C to D and with a qualification and in a different context at 243 G.

23. Apart from Professor Zygmunt's rejected evidence about what he said he told Dr Sandler, there was no basis for a finding that what Mr Davies described as a practice which was "quite common", sending the patient home, amounted to misconduct. Given the Panel's view of Professor Zygmunt's evidence there was in truth no sound basis for the finding that the failure to direct in-patient treatment with intravenous antibiotics was misconduct. I therefore quash that finding.

The Second and Third Issues

24. I take these together. Whether or not admitted or proven misconduct amounts to serious professional misconduct is a question of judgment for the expert Panel. It is only if I were satisfied that it could not reasonably hold that it amounted to serious professional misconduct that I would quash its conclusion that it did. The findings on all four elements of misconduct seem to me to fall at or near the bottom end of the range of conduct which can properly be categorised as serious professional misconduct. I doubt that removal of the second element will or should cause the Panel to alter its overall finding that Professor Zygmunt was guilty of serious professional misconduct, but as I am remitting the case for reconsideration, for reasons which I explain below, I will invite the Panel to reconsider its finding of serious professional misconduct in the light of my quashing of its finding on element (2).
25. Other criticisms of the facts found by the Panel, in particular its disbelief of key parts of the evidence of Professor Zygmunt, are made in the notice of appeal and advanced by Mr Francis QC in his submissions. Given the lack of challenge to three of the four grounds upon which the Panel founded its view, these criticisms, even if justified, could make no difference to the outcome of this appeal and I do not therefore address them separately.

Fitness to Practise

26. The Panel conducted its hearing in three stages, as was required by rule 17 of the General Medical Council (Fitness to Practise) Rules Order of the Council 2004, SI 2004/2608. Thus far I have only dealt with stage 1. Rules 17(j) and (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 . . . "

The rules reflect the words of section 35C(2) of the Act which, on a natural reading, requires impairment of fitness to practise to be established by reason of, and therefore as well as, one of the five circumstances specified in the subsection upon which the finding must be based.

27. Mr Hare for the GMC accepts the following proposition: even though the Panel properly finds that a practitioner has been guilty of misconduct or that his professional performance has been deficient, it may (my emphasis) conclude that fitness to practise is not impaired. In many, perhaps the great majority of cases, the issue will not be live, but in cases in which it is, it must be separately and appropriately addressed by the Panel.

The issue is far from easy to define as Smith LJ observed in her fifth Shipman Report at paragraphs 25.42 and 43:

"25.42. The advantage of the concept of 'impairment of fitness to practice' is that it is capable of embracing any or all of the types of problem that the GMC habitually encounters, ie, misconduct (including breaches of the criminal law leading to convictions or cautions), deficient professional performance, adverse health or determinations.

25.43. The disadvantage of the concept is that it is not at all clear what it means. The concept is not defined in the 1983 Act or in the Rules which are to govern the operation of the new procedures. The only relevant legislative provision is at section 35C of the 1983 Act, where it is said that a doctor's fitness to practise shall be regarded as 'impaired' by reason only of misconduct, deficient professional performance, a conviction or caution, adverse physical or mental health or a determination. That section imposes a limitation upon the routes by which a doctor's fitness to practise might be found to be impaired, but it does not help in understanding what an impairment of fitness to practise is. I have said elsewhere in this Report that the expressions 'serious professional misconduct' (SPM) and 'seriously deficient performance' (SDP) were difficult to define or even to recognise. I believe that even greater difficulty will be encountered with 'impairment or fitness to practise' unless it is clearly defined."

I respectfully repeat and adopt her observation in paragraph 133:

"There is an urgent need for the GMC to formulate the standards, criteria and thresholds by which the impairment of fitness to practise is to be judged."

28. Current GMC guidance, given following criticism by Smith LJ of an earlier version, is given in section 1, paragraph 11 of the Indicative Sanctions Guidance for Fitness to Practise Panels of April 2005:

"Neither the Act nor the Rules define what is meant by impaired fitness to practise but for the reasons explained below, it is clear that the GMC's role in relation to fitness to practise is to consider concerns which are so serious as to raise the question whether the doctor concerned should continue to practise either with restrictions on registration or at all."

This is unhelpful. To advise a decision-making Panel as to the test which it must apply that "the GMC's role in relation to fitness to practise is to consider concerns which are so serious as to raise the question whether the doctor concerned should continue to practise ..." (my emphasis) does not define a test at all. It identifies and begs the question without providing any guidance as to how it is to be answered.

29. Smith LJ helpfully identified recurrent features of cases in which impairment of fitness to practise has been found to exist at paragraph 25.50 of her report:

"25.50. I think it will be helpful, in the resolution of the problems that I am about to outline, if I analyse the reasons why a decision-maker might conclude that a doctor is unfit to practise or that his/her fitness to practise is impaired. In the examples I discussed above, four reasons for unfitness recurred. They were (a) that the doctor presented a risk to patients, (b) that the doctor had brought the profession into disrepute, (c) that the doctor had breached one of the fundamental tenets of the profession and (d) that the doctor's integrity could not be relied upon. Lack of integrity might or might not involve a risk to patients. It might or might not bring the profession into disrepute. It might be regarded as a fundamental tenet of the profession. I think it right to include it as a separate reason why a doctor might be regarded as unfit to practise, because it is relevant even when it arises in a way that is quite unrelated to the doctor's work as a doctor."

That passage demonstrates, as is I think self-evident, that the concept of fitness to practise is not limited to clinical performance.

30. Smith LJ also helpfully spelt out that which is expressed in the words of section 35C(2) at 25.48:

"25.48. Another potential problem arises with the time when fitness to practise is measured or assessed. The 1983 Act permits an FTP Panel to take action on registration if it finds that the doctor's fitness to practise is impaired. That implies that the impairment must be present at the time of the hearing. So, if a doctor has committed a serious act of misconduct a year ago, does that indicate that his/her fitness to practise is currently impaired? I understand that the GMC has been advised that, although section 35D(2) of the 1983 Act refers to a finding that a doctor's fitness to practise is impaired, present impairment of fitness to practise can be founded on past matters. That seems sensible. The doctor's current fitness to practise must be gauged partly by his/her past conduct or performance. It must also be judged by reference to how s/he is likely to behave or perform in the future."

31. In a misconduct or deficient performance case, the task of the Panel is to determine whether the fitness to practise is impaired by reason of misconduct or deficient performance. It may well be, especially in circumstances in which the practitioner does acknowledge his deficiencies and take prompt and sufficient steps to remedy them, that there will be cases in which a practitioner is no longer any less fit to practise than colleagues with an unblemished record.
32. With one qualification, I agree with and adopt the judgment of Silber J in Cohen v GMC [2008] EWHC 581 Admin at paragraphs 62 to 64:

"62. Any approach to the issue of whether a doctor's fitness to practice should be regarded as 'impaired' must take account of 'the need to protect the individual patient, and the collective need to maintain confidence in the profession as well as declaring and upholding proper standards of conduct and behaviour of the public in their doctors and that public interest includes amongst other things the protection of patients, maintenance of public confidence in the profession'. In my view, at stage 2 when fitness to practice is being considered, the task of the Panel is to take account of the misconduct of the practitioner and then to consider it in the light of all the other relevant factors known to them in answering whether by reason of the doctor's misconduct, his or her fitness to practice has been impaired. It must not be forgotten that a finding in respect of fitness to practice determines whether sanctions can be imposed: section 35D of the Act.

63. I must stress that the fact that the stage 2 is separate from stage 1 shows that it was not intended that every case of misconduct found at stage 1 must automatically mean that the practitioner's fitness to practice is impaired.

64. There must always be situations in which a Panel can properly conclude that the act of misconduct was an isolated error on the part of a medical practitioner and that the chance of it being repeated in the future is so remote that his or her fitness to practice has not been impaired. Indeed the Rules have been drafted on the basis that the once the Panel has found misconduct, it has to consider as a separate and discreet exercise whether the practitioner's fitness to practice has been impaired. Indeed section 35D(3) of the Act states that where the Panel finds that the practitioner's fitness to practice is not impaired, 'they may nevertheless give him a warning regarding his future conduct or performance'."

The qualification is that I would substitute the present for the past tense in the second sentence of paragraph 62.

33. This case is potentially such a case. For reasons which were not at all the responsibility of the Panel, evidence highly relevant to impairment of fitness to practise was not given until the third stage of the inquiry, mitigation, before sanction was determined. In its determination of sanction, the Panel determined that it was not necessary to review Professor Zygmunt's practice:

"Apart from this one episode in 2001 when you failed to act in accordance with the requirements of 'Good Medical Practice' in the areas identified, the Panel has received no evidence that suggests you pose a risk to your patients. To the contrary, the evidence of senior professional colleagues, given without reservation, was that you are a safe doctor. The period of suspension which the Panel has imposed in order to mark its disapproval of your misconduct should not result in a deterioration of your surgical skills. The Panel has not identified any areas of your practice which require remedial training."

34. The evidence which led to this favourable conclusion, a conclusion which on any common sense view relates to Professor Zygmunt's current fitness to practise, should have been put before the Panel at the second stage. Had it been, the Panel would have had material upon which it could have concluded that Professor Zygmunt's fitness to practise was not impaired. Its approach to that issue was to summarise correctly, subject to element (2) discussed above, its misconduct findings at page 70. It then stated:

"Professor Zygmunt's actions and omissions taken as a whole fell significantly below the standards reasonably to be expected of a competent, experienced consultant. In all the circumstances, and having applied the relevant tests, the Panel has concluded that his fitness to practise is impaired by reason of his misconduct."

The "relevant tests" applied were identified on page 69:

"The Panel has taken account of the GMC's 'Indicative Sanctions Guidance'. That document states at section 1-2, paragraph 1 that:

'It is clear that the GMC's role in relation to fitness to practise is to consider concerns which are so serious as to raise the question whether the doctor concerned should continue to practise either with restrictions on registration or at all."

35. The principle that the GMC should be able to take action in relation to a doctor's registration "in the interests of the public" is well established, as is the fact that the public interest includes the protection of patients, the maintenance of public confidence in the profession, and the declaring and upholding of proper standards of conduct and behaviour. The second sentence is uncontroversial but is not a test. But the first, which is the only material in the determination which might be, is the unsatisfactory and unhelpful GMC guidance already discussed. The determination does not explain why -- for what reason -- the Panel found that Professor Zygmunt's fitness to practise was currently impaired by reason of the past misconduct which it found.
36. I am therefore satisfied that the approach of the Panel to its determination of the fitness to practise issue was wrong. I quash its decision on that question and remit it to the Panel, identically constituted if possible, to redetermine in the light of the guidance given in this judgment. If the Panel does determine that fitness to practise is not impaired, it can of course give Professor Zygmunt a warning as to his future "conduct or performance" under section 35D(3) which will not be free of effect, as is explained in section 2.1 of the GMC's Indicative Sanctions Guidance document.

Sanction

37. Given that the Panel may not decide that fitness to practise is impaired, I need say no more about sanction in the event that it does, other than to say that it is common ground that the guidance given by the legal assessor, based on GMC guidance, that the Panel must be "sure" that the action it proposes to take is sufficient to protect patients and the public interest is modestly overstated. The Panel must merely be "satisfied" that it is sufficient. In the event that it gets to the stage of reconsidering sanction, it should consider it in the light of that correction of the legal assessor's advice.
38. Gentlemen, I think that deals with the case as far as you have presented it and as far as I am capable of determining it.
39. MR FRANCIS: My Lord, yes. There are two matters. One is in relation to the order but secondly there are two minor points I draw to your attention about what your Lordship said. They are just words you may not have meant, if I may put it that way. Can I deal with the substance first?
40. MR JUSTICE MITTING: Yes.
41. MR FRANCIS: My Lord, you have directed that the finding should be quashed. Can I seek clarification as to whether I understand it correctly, that what you have determined should be quashed is the reference from paragraph 10 to paragraphs 9(b)(i) and (ii). In other words that the charge as found should now be read in paragraph 10 as saying "In relation to paragraph 9, except for paragraphs 9(b)(i) and (ii)". I just needed to clarify. It is helpful to put it that way. The model I take is that they have already in effect served it in an exception in relation to 9(b)(iv) and 9(f).
42. MR JUSTICE MITTING: Mr Hare, I think that adequately explains what I intend.
43. MR HARE: Yes, my Lord.
44. MR FRANCIS: My Lord, on that basis perhaps my learned friend and I could draw up a draft order.
45. MR JUSTICE MITTING: Yes, certainly. I think it would be helpful if you would draft an order rather than leave it to the associate. It is an area of practice in which you are an expert. The associate is not.
46. MR FRANCIS: My Lord, the only other matter to consider is the question of costs. We make an application for costs. I appreciate that the appeal has not been successful in all the grounds put forward in our grounds of appeal. I anticipate my learned friend is going to say that the principal ground upon which we have succeeded today is one which does not appear in the grounds of appeal. We would seek to question that because although it might be said that it was not dealt with extensively there, we did specifically and expressly raise the challenge to the finding of impairment of fitness to practise based on the complaint that the only matter the Panel took into account was the factual finding.
47. If I can take you to the grounds of appeal at page 14, paragraph 5, it was the finding that the impairment of fitness to practise was not justified if it was based on erroneous findings of fact. It failed to give sufficient or any weight to the fact that the failings on the appellant's part found proved related to one case in a long and distinguished career and had occurred six years previously. That matter is developed in the skeleton argument at page 18, paragraph 12 by way of summary. Then it is developed further at paragraph 37 at page 26 onwards.
48. I should explain also that the authority, which of course my learned friend helpfully provided and has much relied on following his production of it, post-dates the hearing of this case before the Panel. The issue that is raised by that is one which was perhaps not being raised in every case at the time. It was not something that was common at the time. My Lord, I would respectfully submit that bearing in mind that any appeal is by way of rehearing and certain arguments clearly get developed more than others in the result, that we should be entitled to our costs of this appeal. I have, if your Lordship wishes, a schedule but perhaps the matter of principle ought first to be considered.
49. MR JUSTICE MITTING: Mr Hare.
50. MR HARE: My Lord, my learned friend is right to anticipate my objection, although it was not entirely mind reading since I put it to him outside of court.
51. MR FRANCIS: That is why I said I anticipated it.
52. MR HARE: What we say, my Lord, and I hope it will not come as a surprise to your Lordship, the case as found, to the extent that the appeal has succeeded, is not the case that was put in the grounds of appeal, nor is it the case that was advanced in the skeleton argument. It is, of course, true that a challenge was posed to the question of impairment, but that was put entirely as it was put to the Panel, that is to say "Look, this doctor has an unblemished record and therefore his fitness to practise should not be found to be impaired". That was the summary that the Panel provided before it arrived at its determination on impairment to which you have been taken previously, my Lord. They are the arguments which were advanced in the skeleton. That was how Mr Francis put it in submissions to you until he had the benefit of the golden apple, as it were, that came from your Lordship in terms of the construction argument. That is the first point, my Lord. The argument is developed in one paragraph of the skeleton extending to some 49 paragraphs. The majority of the submissions relating to the question of impairment seek to put the blame on Dr Sandler as indeed Professor Zygmunt had done in his evidence before the Panel.
53. The second point is that the error into which the Panel fell -- I do not seek to attach any blame to it, but as your Lordship acknowledged -- arose as a result of the manner in which the doctor's case was advanced before the Panel on the basis of the advice of leading counsel.
54. The third point is that both the remedy sought in this appeal, set out in the last paragraph of the appellant's skeleton argument, the three alternative remedies that are advanced there, your Lordship has not ordered any of those. The grounds upon which, of course, this has succeeded bears no relation to the very lengthy passages in the skeleton argument and very lengthy passages in my learned friend's submissions which dealt entirely with questions of fact.
55. The converse of that, my Lord, and as I indicated to your Lordship when I started my submissions this morning, was that essentially the skeleton argument which the GMC had been put to the expense of preparing was almost entirely irrelevant to the issues which your Lordship had to decide when it came to those arguments which were actually runnable. Therefore we say that this would in fact be an appropriate case for the GMC to get its costs, at least of that skeleton argument if not part of its costs of the hearing given that the majority of those were occupied in pursuing lines of argument which were entirely fruitless. On balance, it might be thought more appropriate, given the GMC's status as a public and regulatory authority, that the submission should be that the appropriate order in this case is that there should be no order as to costs at all. My Lord, those are my submissions.
56. MR FRANCIS: My Lord, firstly, my learned friend is wrong to say that no other part of the argument has succeeded. We have succeeded in relation to the quashing of what we would submit is a very important matter of fact. I accept, of course, that there are other matters of fact where we have not succeeded for one reason or another. That may be a reason for ordering only a proportion of costs and I accept that.
57. So far as the question of impairment is concerned, I would ask your Lordship to bear this in mind, with all due respect to my learned friend, which is that the difficulties and confusions to some extent which have arisen around the question of impairment might be thought to have been of the GMC's own making in not looking more carefully at the advice of Smith LJ and doing something rather more about the guidance than they did.
58. The second point is that your Lordship was kind enough to give me a golden apple at a particular point in the argument, but the principle that your Lordship has now adopted is in effect a necessary one in relation to the argument in the skeleton argument, namely you do not just look at the question of conduct, you look at it in the context of the practitioner and his record and the length of time and so on. Also, if I may put it this way, my learned friend's argument started at a very different point to where it finished. He did in the end agree with your Lordship's proposition. As I understood his initial submissions correctly, he was seeking to support a submission where serious professional misconduct in itself gives rise, almost automatically, to a finding of impairment. Therefore, we would respectfully submit that on that important issue we have succeeded and we should be entitled, in justice, to some of our costs if not the whole of them.
59. MR JUSTICE MITTING: I make no order for costs. The appellant has won this appeal conditionally, in the sense that I have quashed part of the decision of the Fitness to Practise Panel and remitted it for further hearing according to principles identified by me, but that was not to any extent the ground upon which this appeal was brought. The appeal has provided a useful opportunity to clarify the law in practice in this field, but that is not how it was put in the first instance.
60. As to the detailed grounds of appeal which did succeed, it was but one amongst many which did not succeed. Accordingly, it would not seem to me just to award the appellant any part of his costs of arguing the detailed grounds. Accordingly, because the appeal has succeeded principally on a ground not raised, and because on the grounds raised the appellant has only succeeded to a small extent, I make no order for costs.
61. I think I should have made it clear in my judgment that I have remitted the matter to the Panel to consider fitness to practise and everything thereafter, so everything is at large from that point on.
62. MR HARE: I think that was clear, my Lord.
63. MR JUSTICE MITTING: Thank you both.