England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		21/05/2009

Mrs Justice Cox :

Introduction

1. Dr W K Dzikowski, a registered medical practitioner, appeals against the decision of a Fitness to Practise Panel of the GMC (the Panel), dated 11 July 2008. Having previously decided that Dr Dzikowski had repeatedly failed to comply with conditions imposed on his registration, both in January 2006 and August 2007, the Panel concluded that it was necessary for the protection of patients and in the public interest for his name to be erased from the Medical Register.
2. Dr Dzikowski was not legally represented during the hearings below, although he was sometimes accompanied by a friend or colleague. His Notice and Grounds of Appeal were drafted by solicitors on his behalf and a skeleton argument, dated 22 August 2008, was submitted by counsel.
3. Shortly before the date fixed for hearing this appeal (10 March 2009) Dr Dzikowski's solicitors applied for an adjournment due to their client's funding difficulties. The GMC opposed the application and it was refused administratively, on the basis that there was insufficient information as to how the adjournment requested would overcome the funding problems referred to. The application was renewed in writing and referred to me to be dealt with at the start of the substantive hearing on 10 March. In the event, however, Dr Dzikowski, who appeared in person before me accompanied by his solicitor, did not pursue the application, stating his firm wish for the matter to be dealt with. I therefore heard the substantive appeal.
4. In addition to this appeal Dr Dzikowski had previously sought permission to appeal to this court against interim orders imposed on him by the Panel in August and December 2007 (CO/493/2008). These have been superseded by the Panel's final determination of 11 July 2008 and the earlier appeal was, therefore, listed before me for disposal.
5. At the start of the hearing, in addition to the bundle of documents already before me, Dr Dzikowski handed up a further, substantial bundle of documents (over 100 pages) entitled "Erasure of the Doctor from the list of medical practitioners". Ms Gallafent, representing the GMC, had not previously had sight of this and I adjourned the hearing for half an hour to examine it and understand its purpose and relevance. In fact, the bundle contained a detailed and wide-ranging account by Dr Dzikowski of his qualifications and experience and all his dealings with the GMC since 2003, which he wished to rely on as his "skeleton of medico-legal argument" in this appeal.
6. Some of this material related to Dr Dzikowski's criticisms of the interim order proceedings in August and December 2007, the subject of claim number CO/493/2008, but Dr Dzikowski agreed with my suggestion that I read this as background to the appeal against the final order. The earlier appeal was, therefore, formally dismissed. At the conclusion of the hearing before me I reserved judgment so that I could read the supplemental bundle in its entirety, thereby enabling oral argument on the main issues to be concluded within the one day allocated for the hearing.
7. I should add that the application in the Appellant's Notice for fresh evidence to be adduced on this appeal from Dr Beckett (not called below) was not mentioned either in counsel's skeleton argument or in Dr Dzikowski's additional written arguments. Nor did Dr Dzikowski pursue it during his oral arguments before me. I shall, therefore, say no more about it, save to point out that no basis for admitting this as fresh evidence was identified and that the circumstances in which fresh evidence can legitimately be adduced on appeal are in any event very limited.

The Legal Framework

8. It will be helpful if I first set out the relevant legal framework for this appeal.
9. The functions and powers of the Panel are set out at section 35D of the Medical Act 1983, as amended, which provides so far as is relevant as follows:

"(9) Where -

(a) a direction that a person's registration be subject to conditions has been given …

and

(b) that person is judged by a fitness to practise panel to have failed to comply with any requirement imposed on him as such a condition,

Subsection (10) below applies.

(10) In such a case, the Panel may, if they think fit –

(a) except in a health case, direct that the person's name shall be erased from the Register; or

(b) direct that the person's registration in the Register shall be suspended during such period not exceeding 12 months as may be specified in the direction."

10. The rules governing the Panel's proceedings are set out in Part 4 of the General Medical Council (Fitness to Practise) Rules 2004 (2004 No. 2608), which provide for the granting of adjournments, the conduct of the various stages of the proceedings and for the calling of evidence and submissions from the parties.
11. This appeal proceeds pursuant to section 40 of the 1983 Act. Section 40(7) provides that:

"On an appeal under this section from a Fitness to Practise panel, the Court may –

(a) dismiss the appeal;

(b) allow the appeal and quash the direction or variation appealed against;

(c) substitute for the direction or variation appealed against any other direction … which could have been given or made by a Fitness to Practise Panel;

or (d) remit the case to the Registrar for him to refer it to a Fitness to Practise Panel to dispose of the case in accordance with the directions of the Court."

12. CPR Part 52 and paragraph 22.3 of the Practice Direction apply. This Court should, therefore, only allow the appeal where it is satisfied that the Panel's decision was wrong, or unjust because of a serious procedural or other irregularity in the proceedings below. Paragraph 22.3(2) provides that the appeal must be supported by written evidence and that it will be "by way of re-hearing". The appeal is usually conducted, as it is here, on the basis of the transcripts of the hearing below; and I have read all the relevant transcripts in this case.
13. In relation to an appeal against sanction, the approach to be taken was recently set out by the Court of Appeal in Fatnani and Raschid v GMC [2007] EWCA Civ 46. Giving the lead judgment, Laws LJ said this at paragraphs 19 – 20:

"… As it seems to me the fact that a principal purpose of the Panel's jurisdiction in relation to sanctions is the preservation and maintenance of public confidence in the profession rather than the administration of retributive justice, particular force is given to the need to accord special respect to the judgment of the professional decision-making body in the shape of the Panel. That I think is reflected in the last citation I need give. It consists in Lord Millett's observations at paragraph 34 of Ghosh v GMC [2001] 1 WLR 1915, page 1923G:

'The board will afford an appropriate measure of respect to the judgment in the committee whether the practitioner's failing amount to serious professional misconduct and on the measures necessary to maintain professional standards and provide adequate protection to the public. But the board will not defer to the committee's judgment more than is warranted by the circumstances.'

20. These strands in the learning then, as it seems to me, constitute the essential approach to be applied by the High Court on a section 40 appeal. The approach they commend does not emasculate the High Court's role in section 40 appeals: the High Court will correct material errors of fact and of course of law and it will exercise a judgment, though distinctly and firmly a secondary judgment, as to the application of the principles to the facts of the case."

14. These then are the legal principles to be applied in considering the issues raised in this appeal.

The Factual Background

15. Dr Dzikowski has been a medical practitioner for approximately 40 years and for 36 of them he has worked in England. At the relevant time he was a consultant psychiatrist specialising in the treatment of drug addicts and drug abusers. He practiced from his clinic known as "Independent Medical Psychiatric Services". Dr Dzikowski describes his patients as being amongst "the most difficult and controversial" and refers to having achieved a high success rate in relation to their treatment.
16. In October 2003 the GMC's Professional Conduct Committee (PCC), found Dr Dzikowski guilty of "serious professional misconduct". The charges found proved related to the inappropriate and irresponsible prescribing of drugs; to the disclosure of a patient's confidential medical material without consent, contrary to good medical practise; and to his allowing an unqualified person to prescribe drugs.
17. The PCC recognised that drug abusers are a difficult category of patients to treat and that many of them regarded Dr Dzikowski as a caring and conscientious doctor. They were very concerned, however, that his actions had put patients at risk and considered that it was necessary, and proportionate in the circumstances, to impose conditions upon his medical registration for a period of 12 months. These conditions required him, essentially, to obtain appropriate training and mentoring in the prescribing of drugs likely to lead to dependence or misuse.
18. Dr Dzikowski states in his written argument (page 8) that he accepted this decision "without reservation"; that he was "exceedingly grateful for the detection of his weaknesses and for advice on how to improve his standard of management"; and that he "immediately implemented all advice".
19. However, new allegations of inappropriate prescribing by Dr Dzikowski subsequently came to the GMC's attention. In October 2004, April 2005 and August 2005, various GMC Panels, which had been convened to review the conditions on his registration, were adjourned pending completion of the investigation into these new allegations. Meanwhile, the conditions were maintained.
20. In January 2006 the PCC found proved a number of new allegations of inappropriate and irresponsible prescribing of methadone mixture and dexamphetamine to a patient. Once again they found that Dr Dzikowski was guilty of serious professional misconduct and they therefore decided to strengthen and vary the conditions in place for a further 12-month period.
21. It is unnecessary to recite all the varied conditions imposed but the fourth, of seven, conditions was as follows:

"4. You shall comply with the current version of 'Drug Misuse and Dependence – Guidelines on Clinical Management' – (the Orange Book) and the British National Formulary in your treatment of your patients."

The British National Formulary (BNF) is a joint, biannual publication of the BMA and the Royal Pharmaceutical Society of Great Britain. Its purpose is to provide healthcare professionals with sound, up to date information about the use of medicines.

22. Dr Dzikowski decided to appeal against that decision, but his appeal was dismissed by Hodge J. on 15 September 2006, after which date these strengthened conditions came into force.
23. A review of these conditions was fixed for hearing on 20 August 2007. Shortly before this hearing the GMC served an expert's report from Dr Nicholas Seivewright, a consultant psychiatrist with expertise in substance misuse. He had been instructed on their behalf to consider a total of 37 prescriptions written by Dr Dzikowski in November and December 2006 and to express an opinion as to whether Dr Dzikowski had breached the conditions upon his registration, in particular condition number 4 referred to above.
24. On 20 August 2007 Dr Dzikowski sought and obtained an adjournment of the hearing, to enable him to consider this report. The Panel therefore directed that the period of conditional registration should be extended. Further, in the light of Dr Seivewright's conclusions, they decided to impose a number of additional interim conditions, the first one of which stated that:

"1. You shall not prescribe Methadone to any patient."

25. The Panel were next due to proceed with the review on 17 December 2007. On the morning of the hearing, however, Dr Dzikowski disclosed to the GMC a large amount of further documentation and an expert's report from Dr Dale Beckett, dated 4 December 2007. The hearing was adjourned again, this time at the GMC's request, and the Panel once more extended the conditions upon Dr Dzikowski's registration for a further period.
26. On this occasion the Panel had before them a second report from Dr Seivewright on behalf of the GMC, in which he concluded that, taking his two reports together, Dr Dzikowski was "in gross breach" of the requirements placed upon him in January 2006 in relation to his prescribing practices. The panel were also aware that, in breach of the first interim condition set out above, Dr Dzikowski had written a prescription for methadone only eight days after that condition had been imposed (the prescription was dated 28 August 2007). In the light of that information and a statement from the relevant dispensing pharmacist, they decided to replace the order for interim conditions with an interim order of suspension.

The Panel's Decision

27. The review of Dr Dzikowski's case was eventually heard over a period of eight days between 21 May and 11 July 2008, when the Panel considered whether Dr Dzikowski had failed to comply with any requirement imposed as a condition of registration. Dr Dzikowski represented himself and the GMC were represented by counsel, Mr Lambis. On 27 May 2008 the Chairman announced the Panel's decision in relation to the breach of conditions.
28. The Chairman referred to the history and to the GMC's case that Dr Dzikowski had failed to comply both with condition number 4, imposed in January 2006, and with interim condition number 1, imposed on 20 August 2007. He then referred to Dr Dzikowski's case before them which was as follows:

"Your case, as presented in your oral evidence, was that you accept that many of the alleged instances are breaches of condition 4, but that your understanding of condition 4 was that it only related to new or returning patients, and not to existing patients. In respect of the alleged breach of the interim condition prohibiting you from prescribing methadone, you contended that the prescription was issued by you on 14 August 2007, and that you had mistakenly dated it the 28th August 2007. This was in fact the date you specified for collection and you argued that you would not have written an explicit date for collection had it been the same day as the prescription itself was written."

29. In arriving at their conclusions the Panel had regard to the oral evidence of Dr Dzikowski and his mentor Dr Zakrzewski, consultant psychiatrist, and to the expert evidence of Dr Seivewright, together with various other documents and reports, including those written by Dr Dzikowski's expert, Dr Beckett, in November/December 2007.
30. In relation to the expert evidence the Chairman said as follows:

"… Dr Seivewright initially carried out a systematic examination of the first ten of your prescriptions, and he concluded that they contained numerous breaches of the recommendations in the Orange Book and the BNF. He concluded that 'it is the pattern of several major elements together which makes [your] practice of such concern, including high dosages, methadone ampoules and tablets, additional benzodiazepines probably not often on reduction regimes, [and] poor prescription writing etc ...'

In his second report Dr Seivewright went on to assess the remaining 27 prescriptions. He concluded that the findings were 'extremely clear' in that you were 'in gross breach of the requirements that were placed upon [you] in prescribing practices.'

The Panel has also considered the letters/reports written by your expert, Dr Beckett, whose opinion is that you have complied with the requirements of the Orange Book and the BNF.

In considering what weight to give to the expert evidence, the Panel has borne in mind the following :-

• Dr Beckett was not called to give evidence and therefore Mr Lambis has not had the opportunity to cross examine him.

• You told the Panel that Dr Beckett only examined 10 of the prescriptions you had written.

• There is no detailed analysis of any prescriptions in Dr Beckett's report.

• Dr Seivewright examined 37 of your prescriptions and provided a detailed analysis of each of them in his reports and in his oral evidence before this Panel.

• Dr Seivewright's opinions were subjected to cross examination by you.

Taking these factors into account, the Panel has accepted Dr Seivewright's evidence in preference to that of Dr Becket."

31. The Panel's findings were then recorded as follows:

"The Panel then went on to consider the wording of the conditions themselves. It noted that conditions 2 and 3 refer to new and returning patients, whereas condition 4 does not. The Panel is satisfied that the wording of condition 4 is clear and that it obviously applies to all patients. You have told the Panel that at all times you believed that the condition did not apply to your existing patients. However, firstly, the Panel accepts Mr Lambis' argument that this explanation has not featured in any of the written submissions that you have produced previously; secondly, the Panel does not find your explanation credible in the light of the clear and obvious wording of the conditions. In these circumstances, the Panel has rejected your evidence in this regard.

In any event, the Panel has accepted the Legal Assessor's advice that your state of mind (or your understanding of the meaning and effect of condition 4) is irrelevant to the question whether or not you have complied with the conditions on your registration.

The Panel then went on to consider whether the 37 prescriptions that were examined and commented on by Dr Seivewright, were compliant with the requirements of the Orange Book and/or the BNF. It has identified five aspects of prescribing practice in respect of which you did not comply with the guidance, as follows:-

1. Adherence to recommended dosage, in accordance with the BNF 2006 edition.

2. The requirement that handwritten alterations to computer-issued prescriptions should only be made in exceptional circumstances; any alterations must be made in the doctor's own handwriting and counter-signed (paragraph 13 of the BNF's guidance under the heading 'Prescription Writing').

3. The requirement that methadone tablets should not be prescribed (page 32 of the Orange Book, under the heading 'c) The Route of Administration').

4. The requirement that diazepam should be the only drug prescribed for the management of benzodiazepine withdrawal (pages 50 and 58 of the Orange Book).

5. The requirement for daily collection of methadone ampoules, when dispensed by a pharmacy (page 55 of the Orange Book).

The Panel has concluded that these requirements have not been complied with in the following instances:-

1 - Dosage

Prescriptions number 1, 3, 4, 5, 6, 9, 11, 13, 15, 18, 21, 23, 24, 25, 26, 28, 31, 33, 34

2 - Alterations to prescriptions

Prescriptions number 3, 4, 5, 8, 13, 37

3 - Methadone tablets

Prescriptions number 1, 10, 14, 19, 20, 32

4 - Benzodiazepines

Prescriptions number 3, 4, 7, 22, 24

5 - Ampoules collection

Prescriptions number 1, 3, 4, 5, 9, 11, 13, 14, 15, 18, 23, 24, 26, 27, 28, 31, 33, 34, 35, and also the single prescription dated 28^th August 2007.

Having accepted and acted upon the Legal Assessor's advice to the effect that it must apply the criminal standard of proof, the Panel is satisfied on the evidence that you did not comply with the Orange Book and/or the BNF in writing 31 of the prescriptions before it and that in these respects you have breached condition 4 of the conditions imposed on your registration in January 2006.

In respect of the alleged breach of the interim condition prohibiting you from prescribing methadone to any patient, the Panel has noted other instances where the date of the prescription is the same as the date for collection or dispensing stated on the face of the prescription. The Panel did not find your explanation of the circumstances of the writing of the prescription at all credible or convincing. The Panel has therefore concluded that you have also breached condition 1 of the interim order."

32. After adjourning the hearing to 9 July 2008 the Panel invited further submissions from both parties as to the appropriate sanction. They gave their decision on that matter on 11 July.
33. In considering what action to take, they reviewed the entirety of the evidence presented on the previous occasion. They had regard also to oral evidence given by three former patients, namely Mr A, Ms B and Mr C, who spoke favourably of Dr Dzikowski's clinical abilities in treating them for drug misuse.
34. They recognised that any sanction imposed must be proportionate and appropriate and that its purpose is not to be punitive, but to protect patients and members of the public and the public interest, which includes the maintenance of public confidence in the profession and the upholding of proper standards of conduct and behaviour. They had regard to the GMC's Indicative Sanctions Guidance and referred expressly to the need to balance the public interest against Dr Dzikowski's own interests.
35. In considering what action to take the Panel had regard to the PCC findings in October 2003 and January 2006 that he was guilty of serious professional misconduct, in respect of inappropriate prescribing and allowing an unqualified person to prescribe; to his multiple failures to comply with the requirements of the Orange Book and the BNF and, therefore, his breach of condition 4; and to his breach of interim condition 1.
36. They considered that the breaches of conditions were too serious to allow the case to be concluded without any action being taken.
37. In considering next whether to impose further conditions on his registration they decided as follows:

"The Panel has taken into account your repeated failure to comply with conditions imposed on your registration by your regulatory body, as set out in this Panel's determination on 27 May 2008.

The Panel has concluded that you have failed to appreciate the importance of complying with the conditions on your registration in every respect. During the course of your submissions over the past two days, you have told the Panel that your opinions on the treatment of your patients override your obligation to comply with conditions imposed by the GMC.

The Panel has therefore concluded that there is a significant risk that you would not comply if a further period of conditions were imposed on your registration. Further, the Panel takes a very serious view of your history of misconduct and repeated failures. Consequently, conditional registration would not adequately protect patients or uphold proper standards of conduct. Accordingly, the Panel has determined that it would not be sufficient to conclude this case by imposing conditions on your registration for a further period."

38. They turned, finally, to suspension or erasure and their conclusions were these:

"The Panel next considered whether it would be sufficient to suspend your registration. It is in no doubt that you represent a significant risk to patients. The Panel is not satisfied that you have demonstrated insight into your failings and the need to comply with the requirements of the GMC. You have shown by your conduct and confirmed in your submissions that, if you do not agree with a requirement placed upon you, you will not comply with it.

The Panel is satisfied that you have demonstrated a deep-seated attitudinal problem in that you appear to consider that you are not constrained in the treatment of your patients either by conditions on your registration or guidance provided to your profession. Furthermore, the Panel is also satisfied that this would extend to any area of medical practice you might undertake.

Further, the Panel is satisfied that your conduct constitutes a serious departure from the standards set out in the GMC's publication Good Medical Practice. It also considers that your attitudinal problem has the potential for causing serious harm to your patients and to other users of illicit drugs, who are among the most vulnerable people in society.

Taking these factors into account, the Panel is satisfied that the imposition of a period of suspension would not sufficiently provide for 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 Panel has concluded that your attitude and lack of insight, as evidenced by your behaviour, are fundamentally incompatible with your continuing to be a registered medical practitioner.

Accordingly, the Panel has directed that your name be erased from the Medical Register. The Panel is satisfied that is necessary for the protection of patients and is in the public interest to do so."

39. Dr Dzikowski's registration was suspended forthwith and the interim order of suspension revoked. The order for immediate suspension has remained in force pending determination of this appeal.

The Appeal

40. There are five grounds of appeal set out in the Appellant's Notice, which are elaborated upon in counsel's skeleton argument and Dr. Dzikowski's further written submissions. The Panel is said to have erred in that:

(1) They were not entitled to come to the findings that they did as to breach of conditions on the evidence before them.

(2) They failed properly to explain to Dr Dzikowski, who was unrepresented, the potential consequences of not calling his expert witness, Dr Beckett, to attend to give oral evidence and be cross-examined. It is alleged that this failure struck at the heart of the fairness of the proceedings, given the importance of expert evidence in the GMC's case against Dr Dzikowski.

(3) They failed to provide proper reasons for preferring the expert evidence of Dr Seivewright to that of Dr Beckett. In the context of a conflict in the expert evidence, cogent reasoning is required. In this case Dr Dzikowski was entitled to know what it was about Dr Seivewright's reasoning that was more persuasive, but it is not possible to discern this from the decision.

(4) They failed to take into account the clinical context for each prescription in considering the appropriate sanction. The particular circumstances of each prescription are important in judging seriousness and the Panel failed to consider them and, therefore, to form a proper view of culpability and risk.

(5) In all the circumstances they imposed a disproportionate sanction, having regard in particular to Dr Dzikowski's length of service and to the efforts he had made to comply with conditions previously. If there were real concerns about his compliance in the future a suspension from practice would have been adequate to protect the public.

41. These grounds were all developed by Dr Dzikowski in his oral arguments, during which he took me to various documents in the bundle, a number of which related to previous or background events.
42. In relation to the first ground of appeal he referred in general terms to the conditions imposed upon him and to what he said were "internal inconsistencies in the Orange Book guidance on prescribing". He described as unfounded the criticisms made of him by Dr Seivewright. As he developed his written arguments it was clear that a number of matters he was now advancing before me were different from the arguments he had put forward in his defence before the Panel. He raised a number of challenges to the Panel's decision that he was in breach of condition 4. In relation to condition 1 of the interim order, however, (that he was not to prescribe methadone) he appeared to accept that he was in breach, but relied upon mitigating factors, which he suggested merited a more lenient sanction.
43. As to the second ground of appeal, Dr Dzikowski said that Dr Beckett, who is now in his late 80s, was unwell at the time of the hearing and although present was not in a sufficiently good physical condition to give evidence. Dr Dzikowski said that he was unaware of the importance of his expert giving oral evidence and that he was not made aware of this at the time. This, he suggested, created an unfairness and put him at a disadvantage.
44. In support of ground 3 Dr Dzikowski referred to Dr Seivewright having made many mistakes and having acted "unprofessionally and illegally". The Panel failed, he suggests, to explain sufficiently clearly why they accepted and preferred his evidence to that of Dr Beckett.
45. In relation to grounds 4 and 5 he contended that the Panel should always have regard to the clinical realities when assessing the seriousness of prescribing errors. They failed to have sufficient regard to the clinical context for each case, and to the evidence of the patients called on his behalf and the many letters of gratitude sent to him from other former patients. The sanction imposed was, in his case, disproportionate in all the circumstances.

The First Ground: Breach of Conditions

46. It is important to note, first, that the breaches alleged were of condition 4 and condition 1 of the interim order. One of the documents that Dr Dzikowski took me to was the updating report from Dr Zakrzewski, consultant psychiatrist, dated 3 May 2007, sent to Dr Paice at the London Deanery. At the time Dr Zakrzewski was supervising or mentoring Dr Dzikowski at the GMC's request, in relation to his prescription of Dexedrine to new methadone patients. Whilst it is correct that Dr Zakrzewski referred to Dr Dzikowski's clinical practice as "gradually improving" and to his clinic operating in general on "sound Orange Book principles", his report clearly related to the other conditions imposed in January 2006, which were not in issue at this hearing. Dr Zakrzewski did not address, and there is no evidence that he ever saw, the 37 prescriptions considered by Dr Seivewright. His report is, therefore, not relevant to the matters that I have to consider.
47. It is also important to note that Dr Dzikowski's defence before the Panel in relation to condition number 4, as the transcript shows, was not that he had committed no breaches of that condition (indeed he accepted during his evidence that many of the alleged instances involved breaches of it by him), but that he had understood the condition to refer only to new or returning patients, and not to existing ones. The Panel rejected this explanation for the reasons they gave. He now appears to suggest that he was not, in fact, in breach, without explaining why he did not rely on these points at the appropriate stage even though he was well aware of the allegations made. This, in my view, considerably weakens Dr Dzikowski's attempt, at this appeal stage, to challenge some of the Panel's findings as to breach.
48. I have nevertheless considered the additional points he has raised in this appeal; and it clear that the Panel themselves, although rejecting his explanation, went on to consider carefully whether there had in fact been any breaches of condition 4. On this they were plainly assisted by Dr Seivewright's evidence, although as Ms Gallafent observes, some of the breaches referred to appear plainly on the face of the prescription itself and needed no expert opinion to explain them.
49. The key question is therefore whether the Panel were entitled to come to the conclusions that they did, in relation to breach of condition 4, on the evidence before them.
50. In their decision the Panel identified five aspects of prescribing practice, derived from the Orange Book and the BNF, in respect of which Dr Dzikowski had not complied with the guidance given (see paragraph 31 above). Dr Dzikowski raised issues relating to three of them.
51. He referred first to the fifth one, namely "the requirement for daily collection of methadone ampoules when dispensed by a pharmacy". At pages 6A – 11A of this section of his written arguments, and developed orally before me, Dr Dzikowski complained that Dr Seivewright criticized him wrongly for non-compliance with the Orange Book guidance when that guidance was itself inconsistent; and that Dr Seivewright failed to inform the Panel as to these inconsistencies, which emerged only later on in cross-examination. The suggestion is that Dr Seivewright misled the Panel in this respect.
52. Dr Dzikowski took me to pages 27 – 28, 53 and 56 – 58 of the transcript for 21 May 2008 in support of this complaint. He referred also to page 33 of the Orange Book, where at paragraph 7 it states:

"If the patient is clearly making satisfactory progress on daily dispensing regime, the dispensing intervals can be reduced gradually to thrice, then twice weekly etcetera."

He argued that the requirements for daily collection depended on the progress of the particular individual and that the Panel erred in concluding that he had not complied with the guidance, which was itself inconsistent, in the case of the 19 prescriptions identified.

53. The passages of the transcript referred to followed Dr Dzikowski's detailed cross-examination of Dr Seivewright, when one of the Panel members, Dr Baker, asked a series of questions about the dispensing of "injectables" (injectable drugs) and the general principle of collection on a daily basis referred to in the guidance at page 55. Dr Baker referred to a possible inconsistency with the passage on page 33, referred to above, and Dr Seivewright agreed, initially, that it seemed to be "not entirely consistent".
54. Reading on in the transcript, however, it becomes clear on page 62 that there was apparently no inconsistency and that Dr Seivewright's earlier answer had been based on a misunderstanding of the structure of the Orange Book. The passage on page 33 was not dealing with injectable drugs, where the guidance as to daily collection (page 55) was clear, i.e. that they "should be daily". Thus, the general guidance as to prescribing referred to on page 33 was limited by the specific guidance as to the requirement for daily collection in respect of injectable methadone.
55. Further discussion as to this appears on page 63, when Dr Baker referred to a further possible inconsistency on page 56 of the Orange Book, where there is a reference to "daily dispensing in most situations" in the context of injectable methadone, though not in relation to cases where good progress was being made by the patient.
56. This, narrower conflict then appears to have been resolved at page 66 of the transcript where the following passages appear.

"DR. BAKER: Just one thing occurs to me, just in relation to an apparent conflict between 'daily' -perhaps not daily, but on 55 it certainly says 'daily', but I think it actually talks about pharmacy dispensing should be daily, and the more liberal view on 56 just talks about dispensing. It may be the more liberal method may be adopted in dispensing other than pharmacy, in other words more tightly controlled dispensing by a practitioner, so that might resolve the apparent inconsistency - the 'daily' restricted to pharmacy dispensing, and the 'more liberal' in other situations?

A. So do you mean that there might be non-daily dispensing if it was actually observed?

Q. Or dispensed by a practitioner rather than a pharmacy; that might resolve the apparent inconsistency.

A. Yes; because pharmacy is seen as the most insecure, because the patient just takes a piece of paper and takes away a box of ampules.

Q. Yes; so the licence is given to be more generous perhaps other than pharmacy dispensing; that might be quite possible."

57. In my judgment and on a proper analysis of the evidence, there is no question of Dr Seivewright having attempted to mislead the Panel. The Panel, in my view, was entitled to find that the Orange Book guidance was for a requirement of prescribing practice of daily collection when methadone ampoules were being dispensed by a pharmacy, as they all were in this case. That is, they should be prescribed on a daily basis. All the prescriptions for ampoules of methadone identified by the Panel were, therefore, in breach of that guidance and therefore in breach of condition 4.
58. I note in any event that, of the 19 prescriptions identified in the Panel's decision where this requirement was not complied with, all save three of them involved non-compliance with the other four aspects of prescribing practice, which are not challenged. Thus, whilst in my view the Panel made no error in this respect, even if they had it is most unlikely that it would have had any effect upon their decision as to the appropriate sanction which was ultimately imposed.
59. The second point raised by Dr Dzikowski was in respect of requirement of prescribing practice number 2, and the requirements for the doctor's handwritten alterations to be made only in exceptional circumstances and to be countersigned.
60. Dr Dzikowski contends that what he did, in making handwritten alterations to the six prescriptions identified, was not wrong because the prescriptions were acceptable to the pharmacist. He referred at page 2B of his written arguments to page 7 of the BNF where, in the chapter dealing with "controlled drugs and drug dependants" it states:

"A pharmacist is not allowed to dispense a controlled drug unless the information required by law is given on the prescription."

Since the prescribed drugs were dispensed in all these cases the Panel, he suggests, were wrong to find him in breach of the BNF requirements.

61. With respect to Dr Dzikowski he is failing to address the right question. The factual question for the Panel was whether he had complied with the requirement at paragraph 13 of the BNF guidance, under the heading "Prescription Writing", that handwritten alterations to computer issued prescriptions should only be made in exceptional circumstances, should be made in the doctor's own handwriting, and should be countersigned. Handwritten alterations which did not comply with these requirements was found to exist in prescriptions 3, 4, 5, 8, 13 and 37; and Dr Dzikowski has not identified any basis for suggesting that the Panel were wrong to conclude that there was a breach of these requirements in these cases.
62. The third point raised is in relation to breach of the fourth aspect, that diazepam (rather than the more "abusable" benzodiazepines) should be the only drug prescribed for the management of benzodiazepine withdrawal (Orange Book at pages 50 and 58). Prescriptions for the more abusable benzodiazepines, for example temazepam and nitrazepam, were found in the five cases identified.
63. Dr Dzikowski argues, essentially (see pages 3B – D of his written arguments), that sudden cessation in the use of benzodiazepines such as temazepam or nitrazepam can lead to a recognised withdrawal state, which should be avoided due to its unpredictable and often detrimental impact upon patients. Having regard to the clinical realities he contends that he should not have been criticised for prescribing as he did.
64. This seems to me, however, to amount to a challenge to the Orange Book guidance itself and not to the question whether he was in breach of that guidance. The Panel, in my view, were entitled to conclude as they did.
65. In relation, finally, to the third aspect (not to prescribe methadone tablets) Dr Dzikowski accepted that he was in breach as alleged, but he submitted that the clinical realities were not sufficiently taken into account by the Panel when considering sanction. This is a point he makes generally in relation to the sanction imposed and I shall, therefore, return to it when dealing with his grounds of appeal against the sanction imposed.
66. I add for completeness that, in relation to condition 1 of the interim order, the Panel rejected Dr Dzikowski's explanation as to the circumstances in which the 14 August prescription was written, having heard his evidence. Dr Dzikowski did not raise this in his oral arguments before me and although in his written arguments he had put forward the same explanation which he put before the Panel, there is no basis for suggesting that they were wrong to reject it. They were clearly entitled, having rejected it, to conclude that Dr Dzikowski was in breach of that condition.
67. This first ground of appeal therefore fails.

The Second Ground: Failure to Explain Potential Consequences of Dr Beckett Not Giving Oral Evidence

68. Dr Dzikowski contends that there was a real unfairness to him in this respect. He states that he was at no stage warned by the Panel as to the potential, adverse consequences of not calling Dr Beckett to refute orally the opinions expressed by Dr Seivewright. Given that he was, throughout, unrepresented there was a clear duty to advise him in clear terms of the potential effects, in particular given the importance of the expert evidence in the case against him. Dr Dzikowski states that he was unaware that different weight would be attached to Dr Beckett's report if he did not give evidence. He relies on the following passage in the transcript for Thursday 22 May at page 37:

"THE CHAIRMAN: We are at the stage in Dr Dzikowski's evidence where the Panel can ask questions. May I check? Is it your expert witness that you have present this afternoon?

DR DZIKOWSKI: Dr Beckett, who was the author of original Orange Guidance 20 years ago, he is not in the best shape today and he will appear only as observer, if it is acceptable.

THE CHAIRMAN: So you are not intending to call him as a witness?

DR DZIKOWSKI: No.

THE CHAIRMAN: Thank you for that clarification. …"

69. He states that, had he been warned, he would have asked the Panel to adjourn for an hour or so, so that he could then call Dr Beckett. He contends that Dr Beckett was in a weak physical state at the time, due to his diabetes, but that after a short adjournment he could then have given oral evidence, when he was feeling a little better.
70. It is necessary, first, to read on in the transcript to the passage immediately following the earlier exchange, as follows:

"MR LAMBIS: I just wanted to mention I was very fortunate to meet Dr Beckett just briefly outside. Obviously, we have just heard what we have heard. If that is the case and that will remain the case, then obviously Dr Seivewright has no fruitful reason for meeting Dr Beckett to discuss issues and I wonder if I may release Dr Seivewright because he is here really to consider what Dr Beckett might have said and vice versa.

There is another issue of course that raises its head and I do not know when you want to discuss it, Madam, but of course it is the admissibility and what weight you attach to the report that is in your papers from Dr Beckett.

THE CHAIRMAN: I think under the circumstances, I had not anticipated that the discussion would go in this direction. I was merely identifying the new person in the room. Under the circumstances, would it perhaps be more appropriate to complete the questioning, which I do not anticipate will be very long, and then we can proceed with the next stage after that. …"

At this stage, therefore, the issue of how Dr Dzikowski wished to proceed and the consequences that would follow was deferred until after the conclusion of his own evidence.

71. After he had finished giving his evidence the transcript contains the following relevant passages at page 42 – 43:

"MR LAMBIS: … Obviously, I do not want to interfere with Dr Dzikowski's case. He must present it as he wishes, but as I understand the position at the moment it is that the doctor has finished his evidence and we obviously anticipated at this juncture his expert witness was going to be called. He has arrived and when I spoke to him very briefly over lunch to introduce myself, he accepted that he would meet with our expert to discuss matters at some point in order to facilitate the type of speedy evidence that we had discussed yesterday. I understand now from what Dr Dzikowski said that the expert is not going to be giving evidence. If that is correct, then we have to deal with the issue of the fact that his expert's reports are in your papers and of course I have not had an opportunity to cross-examine him. I have always made it abundantly clear to Dr Dzikowski, as had the GMC, as I have both to him and through the Panel that his evidence is not evidence that we accept. It is challenged evidence, but of course it is in your bundles.

THE LEGAL ASSESSOR: Mr Lambis, if you do not mind me saying so, the procedure should be that, once the doctor has concluded his evidence, it is for him to continue to present his case. Therefore, he will now be asked to call his next witness. Now, if the doctor confirms that he is not going to call Dr Beckett to give oral evidence, that is the first step. Maybe, on behalf of the Panel, if I may just formally ask you, Doctor, is it your intention now to call Dr Beckett to give oral evidence?

DR DZIKOWSKI: I said clearly and precisely not.

THE LEGAL ASSESSOR: Thank you. The next issue then is whether Dr Dzikowski wishes that the Panel should read and consider and rely upon the reports that have been prepared by Dr Beckett, and which have been included in the papers submitted before the Panel.

MR LAMBIS: Yes, I agree.

THE LEGAL ASSESSOR: Now, Dr Dzikowski, Dr Beckett has written two letters, or reports. They are in the bundle. Are you asking the Panel to read and rely upon those two documents?

DR DZIKOWSKI: Do I have any choice?

THE LEGAL ASSESSOR: Indeed, you have a choice. You can either say, 'Yes, I want the Panel to read and consider and take into account that evidence,' or you can say, 'No, I do not.' That is a fairly straightforward choice.

DR DZIKOWSKI: Yes, this evidence should be taken into account because Dr Beckett is not in the best physical shape today and this was written some time ago. Then, of course, he will be unable to present his point of view today.

THE LEGAL ASSESSOR: So therefore you do wish the Panel to look at and to take into account this material?

DR DZIKOWSKI: Yes.

THE LEGAL ASSESSOR: But do you understand that because Dr Beckett will not have given oral evidence and will not therefore have been subject to cross-examination by Mr Lambis, that necessarily the weight to be attached to Dr Beckett's material will be reduced?

DR DZIKOWSKI: Absolutely.

THE LEGAL ASSESSOR: So you are aware of that ---

DR DZIKOWSKI: Yes, I am aware of that.

THE LEGAL ASSESSOR: --- and that is how you wish the matter to be proceeded with?

DR DZIKOWSKI: Yes, thank you.

THE LEGAL ASSESSOR: Mr Lambis, I think really that is as far as the Panel need go."

72. It is difficult to see what else needed to be said to Dr Dzikowski to make the position clearer. The legal assessor warned him expressly that, if Dr Beckett was not called, the weight to be attached to his report would necessarily be reduced. Dr Dzikowski indicated that he understood that, sought no adjournment, and proceeded on that basis asking the Panel to consider Dr Beckett's written report and to take it into account.
73. I agree with Miss Gallafent that the suggestion at paragraph 16 of counsel's skeleton argument that, if Dr Beckett was not called, his evidence would be very unlikely to be accepted and Dr Dzikowski would be found to have breached condition 4, makes no sense. At this time in the proceedings the Panel had made no findings at all as to whether Dr Dzikowski was in breach. Nor had they considered Dr Beckett's evidence. It would have been wholly inappropriate for any such indication to have been given.
74. For these reasons, in my view, there was no serious procedural irregularity in this respect and the second ground of appeal must fail.

The Third Ground: Inadequate Reasons Given for Preferring the Evidence of Dr Seivewright to that of Dr Beckett

75. In his skeleton argument counsel submits that the mere fact that Dr Seivewright had examined a greater number of prescriptions than Dr Beckett and had given oral evidence and been cross-examined, was not enough. Given the conflict of expert evidence, cogent reasoning was required (see English v Emery Reimbold [2002] 1WLR 2409) and the reasoning given here was inadequate. It is impossible to discern from the decision why Dr Seivewright's evidence was preferred.
76. Dr Dzikowski relied on these submissions. He referred in addition to what he alleged were Dr Seivewright's "many mistakes" in his criticisms, and to the fact that Dr Seivewright was acting unprofessionally and illegally in the ways set out in his written arguments. These included a reference to the late service of his report; and to the fact that he considered only ten of the 37 prescriptions in his first report because he was given only limited funding to begin with, which he says indicates bad faith.
77. Dr Dzikowski also raised a number of issues relating to three particular prescriptions. Regarding prescription number 3 he contended that Dr Seivewright referred erroneously to a high dosage of 170 milligrams of methadone per day as being prescribed, instead of the 135 milligrams per day on the prescription. In relation to prescription number 6, it is said that Dr Seivewright should have taken into account, when criticising the prescribed 48 tablets of diazepam, that the particular patient was on a reduction scheme and that there were particular circumstances justifying this prescription. In relation to prescription number 7, he complained that Dr Seivewright unfairly and erroneously increased the actual dosage of nitrazepam from that which was in fact prescribed. In these particular ways, and generally, Dr Seivewright is said to have lacked objectivity, and to have made unfounded and malicious statements.
78. In considering these submissions it is necessary to set out the conclusions, in part, of both experts. In his first report, dated 14 August 2007, it is correct that Dr Seivewright considered only ten of the 37 prescriptions. Having done so he then said this:

"Conclusions about prescriptions

Rather like stopping a clinical trial once the results have become very apparent, I concluded my systematic examination of Dr Dzikowski's prescriptions after the first ten as, quite evidently, there are many breaches of the recommendations in Guidelines or requirements of the BNF."

79. In his second report, dated 11 October 2007, he analysed the remaining prescriptions and set out his findings, concluding that:

"Once again the findings are extremely clear, with Dr Dzikowski in gross breach of the requirements that were placed upon him in prescribing practice."

80. It is common ground that Dr Beckett only ever looked at ten of the prescriptions. It is unclear, and appears always to have been unclear, whether it was the same ten as those first considered by Dr Seivewright. In his first report, dated 4 December 2007, and expressed in very brief terms, Dr Beckett said this:

"I have been given the opportunity of examining the evidence presented to the GMC by the expert witness Dr. Seivewright. I see he has consistently criticised Dr. Dzikovski's(sic) prescriptions on the grounds of their having been altered. Indeed this is a criticism I would have made myself, but it is not against regulations to alter prescriptions, for example the due date of dispensing."

Given that the issue was whether there had been compliance with the Orange Book and BNF guidance, the statement that altering prescriptions is "not against regulations" does not seem to me to address that issue.

81. The following passage reads as follows:

"Dr Seivewright also, and this is more serious, frequently misreads a prescription and thus presents false evidence. Another criticism I have of his evidence to the GMC is that he does not identify the prescriptions he cites by their date of issue, so it is impossible for a Committee that is pressed for time to see for itself what he is reporting on. The result is, naturally, that what passes for expert witness is rather deliberately biased by a preconceived idea of private practice raking in money."

No further elucidation or justification for this opinion is provided. Nor is there any analysis even of the ten prescriptions that he had examined, so as to suggest that Dr Dzikowski was not in breach of the guidance.

82. Further on Dr Beckett says this:

"Since Dr Dzikovsky appears to have adhered to the conditions that were imposed upon him by previous GMC rulings it seems the only reason he can be punished again is by cause of the very unBritish declaration that it is unlawful to present evidence against a GMC verdict."

He does not, however, address or respond to any of the breaches of condition which had been identified by Dr Seivewright.

83. In the light of all the evidence the Panel's reasoning in respect of the expert evidence is in my view adequate. They were entitled to prefer Dr Seivewright's evidence for the reasons they gave.
84. In relation to Dr Dzikowski's further criticisms, put forward in his written arguments produced at the hearing of the appeal, there can be no criticism, firstly, as to the late service of Dr Seivewright's report, since Dr Dzikowski sought and was granted an adjournment to consider and respond to it. He therefore suffered no prejudice as a result of the late service of the report and, indeed, has not suggested that he did. The suggestion of bad faith by Dr. Seivewright, in considering only ten of the prescriptions because, initially, he was not sufficiently remunerated, I reject without hesitation as being entirely without foundation.
85. In relation to the specific criticisms made as to Dr Seivewright's conclusions on prescriptions 3, 6 and 7, I consider the following points to be of importance. Firstly, as is clear from the transcript for Wednesday 21 May at pages 28 to 29, there were some instances in respect of a few prescriptions, where Dr Seivewright indicated that some of the handwriting was indecipherable. Dr Dzikowski was invited to assist as to the accurate reading of prescriptions, where any were unclear, so as to ensure that Dr Seivewright did not decipher any of them incorrectly. This he declined to do. Any criticisms he now seeks to make as to the accuracy or otherwise of the interpretation of his handwriting should be read against that background. However, none of the points he has raised seem to me to be points of any substance.
86. In relation to prescription number 3, as Miss Gallafent points out, whether the dosage was, in fact, 170 or 135mg, either dosage was higher than the dosage recommended in the BNF 2006 edition. In his written arguments Dr Dzikowski also seeks to repeat here the criticisms he has made when dealing with his first ground of appeal, none of which I regard as having merit.
87. In relation to prescription number 6, as the transcript at page 30 makes clear, the evidence of Dr Seivewright was that the diazepam dose prescribed (48 tablets) was more than the BNF recommended maximum of 6 – 30 tablets. Dr Dzikowski's reference to the patient being on a reduction scheme, which should have been taken into account, is therefore irrelevant to the question whether there was a breach of the guidance, which there plainly was. I note that no evidence was adduced before the Panel as to this particular patient and any reduction scheme that he was said to be on.
88. In relation to prescription number 7, whatever the dosage of nitrazepam prescribed, it was the fact of prescribing of nitrazepam itself, rather than diazepam, which constituted a breach of the guidance.
89. For these reasons there is, in my view, no merit in any of these criticisms now made of Dr Seivewright's evidence below. For the reasons I have given this ground of appeal also fails.

Grounds 4 and 5: Failing to Take into Account the Clinical Context for Each Prescription and Disproportionate Sanction

90. Dr Dzikowski contends, essentially, that the Panel failed to have regard to the "clinical realities" in each case when considering the breaches found to have occurred; and that they failed to have sufficient regard to the letters of gratitude from patients and the favourable evidence of A, B and C as to his clinical abilities. Erasure, he submits, was in all the circumstances a disproportionate sanction.
91. It is clear from their decision however that the Panel did, in fact, have regard to the evidence and observations of Dr Dzikowski's former patients. They recognised expressly that patients had spoken favourably of his clinical abilities; that he had provided a valuable service to many people, for many years; and that he wished to continue to remain in clinical practice. All this they took into account in his favour.
92. Much of the material that Dr Dzikowski placed before the Panel, which I have considered, focused in fact on what he was advancing as justification for his prescribing practices, which he considered to be in the best interests of his patients as he viewed them. As the Panel found, however, rather than excusing his behaviour this material revealed a fundamental lack of insight on his part, and deep seated "attitudinal problems", which had been maintained and had persisted, despite efforts to dissuade him.
93. In considering the appropriate sanction the Panel started by considering the least punitive step and working upwards, explaining at each step why any lesser sanction than erasure was insufficient in this case, thereby ensuring that they adopted a proportionate response to the breaches found.
94. It is unsurprising, in my view, that they considered the imposition of further conditions to be insufficient. They had found expressly that he had not made efforts to comply with previous conditions imposed.
95. The finding that his attitudinal problems had the potential to cause serious harm to his patients is important, given the particular vulnerability of this patient group, and, in my view, this finding cannot be impugned. Nor can the finding that his evidence demonstrated a lack of insight and deeply routed attitudinal problems, which led the Panel to reject a period of suspension as adequate to protect patients and maintain public confidence. Having had the advantage of hearing Dr Dzikowski's evidence, the Panel were in the best position to make this assessment and to come to the conclusion that they did. In applying what I recognise to be a secondary judgment in this matter, I have been unable to identify any basis upon which the Panel can be said to have erred as to the sanction imposed, so as to enable this Court to interfere with their decision.
96. I recognise that the outcome of this appeal will be distressing for Dr Dzikowski, but in my judgment and for the reasons I have given, the Panel cannot be said to have erred in finding as they did, or in deciding to erase his name from the Register. This appeal must therefore be dismissed.