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
		2nd March 2009

1. MR JUSTICE DAVIS: On 23rd July 2008 a Fitness to Practise Panel suspended from registration the second respondent, Dr Vaneet Khanna. Dr Khanna has been a consultant physician specialising in the care of the elderly. The suspension arose from misconduct of a sexual nature, as was found by the Panel, with regard to two young women, one a trainee dental student and, quite separately, the other a junior house doctor. The Council for the Regulation of Healthcare Professionals (which is now called the Council for Healthcare Regulatory Excellence) was dissatisfied with that sanction imposed by the Fitness to Practise Panel and it has sought to appeal against the decision on the ground that it was unduly lenient.
2. The statutory power conferring the right to appeal on such a basis is contained in section 29 of the NHS Reform and Healthcare Professions Act 2002. By section 29(4) this is provided:

"If the Council considers that --

(a) a relevant decision falling within subsection (1) has been unduly lenient, whether as to any finding of professional misconduct or fitness to practise on the part of the practitioner concerned (or lack of such a finding), or as to any penalty imposed, or both . . .

and that it would be desirable for the protection of members of the public for the Council to take action under this section, the Council may refer the case to the relevant court."

It is then provided by subsection (7) that if the Council does so refer a case the case is to be treated by the court to which it has been referred as an appeal by the Council against the relevant decision.

3. The respondents to this appeal are, first, the General Medical Council itself. That has taken the position that it is neutral as to this particular appeal and it has appeared through Mr Hare of counsel simply to address any remarks on any consequences of my finding as to sanction. The second respondent is Dr Khanna himself. He did not in fact appear nor was represented before the Panel, but before me he has been represented by Miss Rahman of counsel. The appellant, the Council, has been represented by Mr Jay QC, who did not appear below.
4. The words "unduly lenient" are very familiar to those sitting in the Court of Appeal Criminal Division. In this context, however, the provisions of section 29 have received some comments in various legal authorities, most noticeably in the decision of the Court of Appeal in the case of Council for the Regulation of Healthcare Professionals v General Medical Council and Ruscillo [2005] 1 WLR 717. The facts of that case require no notice for present purposes, but in the course of the judgment of the court there was a discussion as to the approach which the High Court should adopt to a reference under section 29. Thus, this, for example, is said at paragraph 73:

"The role of the court when a case is referred is to consider whether the disciplinary tribunal has properly performed that task so as to reach a correct decision as to the imposition of a penalty. Is that any different from the role of the Council in considering whether a relevant decision has been 'unduly lenient'? We do not consider that it is. The test of undue leniency in this context must, we think, involve considering whether, having regard to the material facts, the decision reached has due regard for the safety of the public and the reputation of the profession."

Then at paragraph 76 this is said:

"We consider that the test of whether a penalty is unduly lenient in the context of section 29 is whether it is one which a disciplinary tribunal, having regard to the relevant facts and to the object of the disciplinary proceedings, could reasonably have imposed."

So that is the kind of language which would be familiar to anyone appearing in the Administrative Court. Then at paragraph 77 this further is said by the Court of Appeal:

"In any particular case under section 29 the issue is likely to be whether the disciplinary tribunal has reached a decision as to penalty that is manifestly inappropriate having regard to the practitioner's conduct and the interests of the public."

Those are various comments on what the wording of section 29 means, but ultimately it comes back to the words "unduly lenient".

5. The background is this. Dr Khanna was born in 1949. He qualified at a medical school in India and, as I have indicated, latterly has been specialising in care for the elderly as a consultant physician, based at a hospital in Manchester. During the course of 2004, a young female student, "Miss S", who was training to be a dentist was assigned for a period to the hospital and for the purposes of her visit there was supervised (to put it in a very broad sense) by Dr Khanna. In effect, she shadowed him for training purposes.
6. The findings of fact in the context of the determination on impaired fitness to practise of the Panel were these. I should add that this was in the context of Miss S giving evidence orally before the Panel, as did the other individual concerned, "Dr K". Dr Khanna, in circumstances I will come on to mention, did not appear, as I have said. What the Panel recorded in its narrative on the determination on impaired fitness to practise was this:

"Dr Khanna undertook training sessions for Miss S, a dental student in July 2004 and was the supervising consultant and educational supervisor for Dr K, a Foundation Year doctor, during August and September 2006.

The Panel heard evidence from Miss S who shadowed Dr Khanna in July 2004 for training purposes. She told the Panel that on her second day at the hospital she was assigned to Dr Khanna who was seeing patients in a clinic. Miss S stated that when she and Dr Khanna were alone, he rubbed her leg in order to demonstrate to her how to examine a patient's leg, hugged her on more than one occasion and put his stethoscope under her clothes and bra without her consent and onto her breast. She stated that he touched her breast and pinched her nipple. Other physical contact which took place included rubbing her shoulder and patting her leg. Miss S also told the Panel that later that day Dr Khanna insisted she go to his office to collect two case studies. When they got there he held her hand, told her she had eczema on her cheek and rubbed cream onto her face. He tried to flick open the buttons on her cardigan but she pushed him away. The Panel found Miss S to be a credible and reliable witness who gave clear, cogent and compelling evidence."

The Panel then went on to record what Dr Khanna had said in an unsigned witness statement placed before the Panel, but found that evidence unreliable. The Panel determined that Dr Khanna's behaviour towards Miss S included physical contact that was unnecessary, inappropriate and indecent.

7. The Panel then set out, in the context of its determination on impaired fitness to practise, its conclusions with regard to the second complainant, Dr K. As recorded in the determination, Dr K told the Panel that Dr Khanna, who said that he had visited Japan, commented to her that she was very lucky because she was a lot prettier and had larger breasts than the women he had seen in Japan. Dr K told the Panel that whilst making this comment he was looking directly at her chest. On this same occasion he hugged her and gave her a prolonged kiss on the cheek. The Panel heard further evidence from Dr K that at her midpoint educational supervision meeting with Dr Khanna in his office, he held her hand and placed it on his own thigh and crotch. She told the Panel that on another occasion, after a multidisciplinary meeting following a patient's death for which she felt she had been blamed, Dr Khanna asked her to stay behind. He then took her hand and placed it on his thigh and crotch and this time Dr K could feel his penis. Dr K asked to speak to a responsible person in the undergraduate office, when it was set out how she made complaint. It is also recorded that Dr K told the Panel that after telling Dr Khanna to stop, his behaviour changed and he did not try to hug or kiss her again. The Panel recorded that it found Dr K to be a credible reliable witness who gave clear, cogent and compelling evidence.
8. The Panel again considered the unsigned statement of Dr Khanna in this regard, but found the evidence of the complainant more credible. The panel went on to judge that Dr Khanna's behaviour towards Dr K included physical contact that was unnecessary, inappropriate and indecent. The Panel then went on to say this:

"The Panel accepted the evidence from Miss S that Dr Khanna touched her breast and pinched her nipple. It also accepted the evidence of Dr K that Dr Khanna placed his hand over hers and placed her hand in the area of his crotch. The Panel concluded from all the evidence that Dr Khanna's conduct in respect of Miss S and Dr K was sexually motivated and an abuse of his position. It did not accept his contention that it was as a result of him simply being a tactile person and was misinterpreted."

9. The Panel then went on to consider the Indicative Sanctions Guidance of the GMC, which I myself will come on to mention in due course, and went on to refer to there being written submissions which had been submitted on behalf of Dr Khanna. They went on to say this:

"However the Panel considers that Dr Khanna was responsible for training Miss S and as such she was entitled to trust him. The Panel has judged that Dr Khanna seriously abused that trust. Dr Khanna was the supervising consultant and educational supervisor for Dr K. He had specific responsibility for not only her education but her welfare. In particular he had been informed by the occupational health department that he should give her extra support if needed because of her previous health problems. The Panel considers that Dr Khanna's conduct towards Dr K was a serious abuse of trust."

The Panel went on to record its awareness of its responsibility to protect the public interest, particularly with reference to maintaining public confidence in the profession and upholding proper standards of conduct and behaviour. It then went on to say:

"Dr Khanna's conduct has fallen well below the standards of behaviour that the public is entitled to expect from doctors and as such undermines public confidence in the profession.

The Panel has determined that Dr Khanna's sexually motivated conduct towards two young and junior female colleagues represents an abuse of the special position of trust Dr Khanna held, and that this amounts to a fundamental breach of the principles that are central to Good Medical Practice. The Panel is in no doubt that the misconduct found proved was serious and persisting."

10. That, in summary, was the determination on impaired fitness to practise. The antecedent summary of the findings of fact included that it was proved that Dr Khanna's behaviour in July 2004 towards Miss S included physical contact that was unnecessary, inappropriate and indecent; that in around August 2006 his behaviour towards Dr K included verbal comments that were unnecessary and inappropriate; that during August and September 2006 his behaviour towards Dr K included physical contact that was unnecessary, inappropriate and indecent; and, in addition, his conduct in respect of Miss S and Dr K was sexually motivated and an abuse of his position.
11. The position, as I have indicated so far as Dr Khanna was concerned, was that he did not attend that particular Panel hearing. On the contrary, after the complaint of Dr K had become formalised and drawn to the attention of Dr Khanna, he submitted his letter of resignation, that being on 28th June 2007. In the course of that letter Dr Khanna said:

"I would like to record that I am sorry that if any of my physical contact with [Dr K] should be considered inappropriate by her."

Then he went on to say that he had previously explained that he made physical contact with her and thought she was upset and things like that.

12. In addition, in his witness statement, which at that time was unsigned but which the Panel received into evidence, Dr Khanna explained his intention not to attend the hearing to give evidence in person. He said this:

"I have found the embarrassment caused to me by these allegations unbearable and simply do not feel able to cope with attending the hearing. I have sought advice from my GP and am currently receiving treatment for depression. I do not mean any disrespect to the Panel who will be hearing my case. I fully understand that the allegations made against me are very serious and the fact that I am not attending does not mean that I do not think the hearing is important."

In the course of that witness statement, Dr Khanna then set out his own version of events at considerable length. In essence, he denied any sexual contact of the more serious kinds alleged, but in effect he said that he was a very tactile person and that his hugging and reassurance had been misinterpreted. He claimed that he had no sexual intent with regard either to Miss S or Dr K. In the event, of course, the Panel did not accept that. In the course of dealing with what he said that he did accept, Dr Khanna said this in paragraph 52 of his statement:

"I have had much time to reflect on [Dr K's] complaint, and more latterly [Miss S's] complaint. I can now see how my actions have been inappropriate and have been too tactile and too personal and that I should have maintained a more appropriate professional distance. There are aspects of the allegations made by [Dr K] and [Miss S] that are simply inaccurate, as I have outlined in this statement, but some of what they say is accurate but has been interpreted by them in a very different way to the way in which it was meant on my part."

13. I should add that there is nothing to show that before the incidents involving Dr K Dr Khanna appreciated that Miss S had also made complaint. Indeed, the indications are that Miss S's complaint only became formalised after the complaint of Dr K herself came out into the open.
14. The Panel having made its factual findings and recorded its determination on impaired fitness to practise, the next stage, of course, for the Panel was to make its determination on sanction. Very lengthy and careful submissions were put in by counsel appearing at that stage on behalf of the GMC. At the conclusion of his submissions he said this:

"In our submission, sir, the maintaining of proper boundaries and relationships with colleagues, most particularly with junior colleagues, is a central tenet of medical practice and to behave in a way incompatible with that is behaviour fundamentally incompatible with being a doctor. As I have indicated already, there is a clear serious departure from standards and there is a clear abuse of position of trust, and this is an offence of a sexual nature which, with due respect to the submissions on the part of the doctor, is, we would submit, more serious than there is given credit for.

For these reasons, my submission is the appropriate sanction is that of erasure."

I gather that, in contrast perhaps to the position applying to prosecuting counsel in the criminal courts, it seems to be the practice for those appearing on behalf of the GMC to make positive recommendations as to the sanction which they are seeking.

15. As the Panel appreciated, there was Indicative Sanctions Guidance for Fitness to Practise Panels which it was appropriate for them to take into account. Those have been put before me. I will refer to certain aspects of them in this judgment. It is, however, important to stress that the title uses the words, amongst others, "indicative" and "guidance". Paragraph 1 of the introduction to the Indicative Sanctions Guidance makes clear that the aim is to promote consistency and transparency in decision-making.
16. The Indicative Sanctions Guidance sets out the background matters in detail, and very helpfully so. It sets out the relevant provisions of the Act. It refers then to the public interest, including in particular the protection of patients, maintenance of public confidence in the profession and declaring and upholding proper standards of conduct and behaviour. It then refers to the issue of proportionality, noting that, in deciding what sanctions to impose, the Panel should apply the principle of proportionality weighing the interests of the public with those of the practitioner. It then deals with the question of sanctions, the question of undertakings and of conditional registration. At paragraph 27 and following, it deals with the question of suspension:

"27. Suspension can be used to send out a signal to the doctor, the profession and public about what is regarded as unacceptable behaviour. Suspension from the Register also has a punitive effect, in that it prevents the doctor from practising (and therefore from earning a living as a doctor) during the period of suspension. It is likely to be appropriate for misconduct that is serious, but not so serious as to justify erasure (for example where there may have been acknowledgement of fault and where the panel is satisfied that the behaviour or incident is unlikely to be repeated).

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

It then goes on to deal with the question of a review hearing and then at paragraph 33 it deals with the question of erasure. That starts:

"The Panel may erase a doctor from the Register in any case, except one which relates solely to the doctor's health, where this is the only means of protecting patients and the wider public interest."

Paragraph 39 mentions some examples of misconduct where the Privy Council had upheld the decision to erase a doctor despite strong mitigation. Then at paragraph 41, under the heading "Sexual misconduct", this is said:

"This encompasses a wide range of conduct from criminal convictions for sexual assault, sexual abuse of children (including child pornography) to sexual misconduct with patients, colleagues or patients' relatives. The misconduct is particularly serious however, where there is an abuse of the special position of trust, which a doctor occupies, or where a doctor has been required to register as a sex offender. The risk to patients is important. In such cases erasure has therefore been judged the appropriate sanction . . . "

17. There is further set out guidance as to when certain sanctions may be appropriate. For example, there is guidance as to when undertakings may be appropriate, there is guidance with regard to conditional registration, and then there is guidance with regard to suspension; the maximum period of suspension available to the Panel being that of 12 months. That is recorded in these terms:

"Suspension (maximum 12 months)

This sanction may be appropriate when some or all of the following factors are apparent (this list is not exhaustive):

- A serious instance of misconduct but where a lesser sanction is not sufficient.

- Not fundamentally incompatible with continuing to be a registered doctor.

- No evidence of harmful deep-seated personality or attitudinal problems.

- No evidence of repetition of behaviour since incident.

- Panel is satisfied doctor has insight and does not pose a significant risk of repeating behaviour.

- In cases where the only issue relates to the doctor's health, there is a risk to patient safety if the doctor were allowed to continue to practise even under conditions.

Consider: Will a period of suspension be sufficient to protect patients and the public interest?

If no, then the doctor must be erased, except in cases that relate solely to the doctor's health where erasure is not available as a sanction.

If it appears to the Panel that there may be reasons (either in the public interest or in the interests of the doctor) for imposing immediate suspension, the panel must invite representations on this question before considering this in camera. This determination is to be delivered separately."

Then, dealing with the sanction of erasure, it is said:

"This sanction is likely to be appropriate when the behaviour is fundamentally incompatible with being a doctor and involves any of the following (this list is not exhaustive):

- Serious departure from the relevant professional standards as set out in Good Medical Practice.

- Doing serious harm to others (patients or otherwise), either deliberately or through incompetence and particularly where there is a continuing risk to patients.

- Abuse of position/trust (particularly involving vulnerable patients) or violation of the rights of patients.

- Offences of a sexual nature, including involvement in child pornography.

- Offences involving violence.

- Dishonesty (especially where persistent and covered up).

- Persistent lack of insight into seriousness of actions or consequences.

Erasure is not available in cases where the only issue relates to the doctor's health."

18. It is necessary, against that background, to refer in some detail to the determination by the Panel as to sanction. The Panel in terms said that it had had regard to the Indicative Sanctions Guidance. The Panel said in terms that it had borne in mind that any sanction must be proportionate and that its purpose was not to be punitive, though it may have a punitive effect. The Panel in terms stated that it had balanced Dr Khanna's interests with those of the wider public, acknowledging that the public interest included not only the protection of patients but also the maintenance of public confidence in the profession and the declaring and upholding of proper standards of conduct and behaviour.
19. The Panel went on to repeat that it had found Dr Khanna's actions in relation to two young and junior female colleagues were unnecessary, inappropriate, indecent, sexually motivated and an abuse of his position. The Panel found that his fitness to practise was impaired by reason of this misconduct which it considered was of too serious a nature for it to be sufficient to conclude this case by taking no further action.
20. The Panel then went on to consider whether it would be sufficient to impose a period of conditions on Dr Khanna's registration, and it decided that it would not reflect the gravity of his misconduct. The Panel then went on to consider, at length, whether a period of suspension would be sufficient. It considered that the facts found proved constituted a serious departure from the standards to be expected of a registered medical practitioner. The Panel indicated that it was mindful that a period of suspension could be used to send out a signal to Dr Khanna, the profession and the public about what is regarded as unacceptable behaviour. After referring to two authorities, the Panel recorded that it had given careful consideration to the fact that Dr Khanna's misconduct related to a series of incidents with two victims, two years apart. The Panel recorded that the incidents still caused the two victims emotional distress. The Panel then went on to say this:

"Young female colleagues have a right to expect that doctors in a senior position should never subject them to behaviour of this type. Nonetheless, the Panel recognises that the nature of Dr Khanna's sexual misconduct, although serious and distressing for the victims, was not at the higher end of the spectrum.

The Panel did not have the benefit of hearing Dr Khanna in person and could not, therefore, make judgments as to his insight. It has noted, however, that he resigned from his post as a consequence of disciplinary proceedings having commenced against him in relation to Dr K. His letter of resignation and his unsigned statement before the Panel both contain some expressions of remorse."

21. The Panel then went on to say that it was an essential task of it to maintain public confidence, that the case was serious and it was necessary in the public interest to mark the Panel's disapproval of Dr Khanna's "unacceptable behaviour". The Panel also considered it necessary to send a message to the profession that sexual harassment of colleagues was unacceptable. The Panel then went on to say this:

"The Panel has seen no evidence that Dr Khanna has repeated this type of behaviour since the last of these incidents and it is not satisfied his misconduct is fundamentally incompatible with continuing to be a registered doctor. Therefore, the Panel is satisfied that a period of suspension is a sufficient sanction that would send out a signal to him, the profession, and the public.

The Panel is of the view that the suspension of Dr Khanna's registration for the maximum period of twelve months is sufficient to maintain public confidence in the profession, protect the public and uphold proper standards of professional conduct and behaviour, and is a proportionate response."

22. The Panel also went on -- and to my way of thinking, importantly -- to indicate that Dr Khanna's case would be reviewed by a Fitness to Practise Panel before the end of the suspended registration. The next Panel at that stage would, as this Panel said, be assisted by Dr Khanna there demonstrating how he had reflected on the findings against him in order to assess the level of insight that he had developed into his misconduct, and also the next Panel would expect to see evidence of his continuing professional development and also would expect to receive references and other information. It seems to me that is potentially important because it does not mean that the Panel was necessarily assuming that Dr Khanna would be restored to the Register after the lapse of the one year suspension. On the contrary, the matter would first have to be reviewed by another Panel and, as was common ground before me, that other Panel might not decide to restore him to the Register, and at all events if it did, that Panel would have the power to do so on conditions; for example, a condition that he have no contact with medical students or the like.
23. A number of authorities was referred to me in the context of the approach to be adopted here, but I intend no disrespect if I do not go through them in any great detail. There was cited to me (and indeed as the Panel itself referred in its determination) the well known words of Lord Bingham in the case of Bolton v The Law Society:

"The reputation of the profession is more important than the fortunes of an individual member. Membership of a profession brings many benefits, but that is part of the price."

Also relevant in this context are the words of Lord Hoffmann in the case of Bijl [2001] UKPC 42 where at paragraph 13 Lord Hoffmann, giving the decision of the Committee, said this:

"The Committee was rightly concerned with public confidence in the profession and its procedures for dealing with doctors who lapse from professional standards. But this should not be carried to the extent of feeling it necessary to sacrifice the career of an otherwise competent and useful doctor who presents no danger to the public in order to satisfy a demand for blame and punishment."

24. This perhaps then leads into the question of the degree of deference which a court should bestow upon the decision of a specialist body such as a Fitness to Practise Panel. Lord Hoffman himself in Bijl had cited from the decision of the Board in the case of Evans v General Medical Council, at paragraph 2 of Bijl, in these words:

" . . . a disciplinary committee are the best possible people for weighing the seriousness of professional misconduct and the Board will be very slow to interfere with the exercise of discretion of such a committee. The Committee are familiar with the whole gradation of seriousness of the cases of various types which come before them and are particularly well qualified to say at what point on that gradation erasure becomes the appropriate sentence. This Board does not have that advantage, nor can it have the same capacity for judging what measures are from time to time required for the purpose of maintaining professional standards."

25. In addition, there was helpfully cited to me the more recent decision of the Court of Appeal in the case of Raschid v General Medical Council [2007] 1 WLR 1460. In the course of his judgment, Laws LJ stressed that there were two particular strands in the relevant learning which needed to be taken into account. One differentiated the function of the panel or committee in imposing sanctions from that of a court imposing retributive punishment. The other emphasised the special expertise of the panel or committee to make the required judgment. Laws LJ then went on to make further comments in that regard, indicating that the required approach did not emasculate the High Court's role, saying:

" . . . 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."

26. I think it worth emphasising those latter authorities because at one stage in his argument Mr Jay sought to suggest that because Dr Khanna had not himself given any evidence before the Panel, this court was in as good a position to assess the matter (or at least some aspects of the matter) as the Panel. True it is that as it emerged the evidence before the Panel was not that contentious; although it is right to record that the witness statement of Dr Khanna did controvert an amount of the oral evidence of the complainants and it was the complainants whose evidence was believed. Nevertheless, I do not think it can be said that this court is in as good a position as the Panel. More importantly, perhaps, as the authorities show, it is the Panel which is the specialist body which is entrusted with determining the question of sanction. It has a range of experience and knowledge which a court quite simply cannot have. At the same time, the court must not shy away from saying, if a Panel's decision is wrong, that that is indeed the court's view. Deference must be shown but that should not degenerate into obsequiousness.
27. Another point which I think should be borne in mind is this. Suspension is in fact a serious matter of itself. I do not think that the position can be put any better than it was put by Collins J in the case of Bevan v General Medical Council [2005] EWHC 174. That, of course, was a decision on its own particular facts, but the comments he made with regard to suspension are, as it seems to me, apposite. He said this:

"Serious though this was, and nothing I have said is intended to diminish the seriousness of it, equally suspension is a serious penalty. It is at least 12 months' inability to practise. That will obviously have its financial considerations, quite apart, in addition, from the adverse publicity and the knowledge that as a result, for at least 12 months, Dr Bevan will have lost his ability to carry out the work which he clearly thoroughly enjoys and which has effectively been his life. He is an excellent doctor. There can be no question about that. It seems to me that it is not in the public interest, unless really necessary, that he be prevented from continuing to practise as a doctor for as long a period as five years."

Those comments are looking at it from the viewpoint of the practitioner, and of course one has to bear in mind throughout the public interest factor. It is I think worth observing that in this particular case Dr Khanna has himself had an unblemished record (and as I was told, this is not disputed) throughout his career. Further, at his age, at the age of 60, if he were to be subjected to the sanction of erasure, he would not be able to apply to restore to the Register until at least five years had elapsed. I thought Miss Rahman was entitled to observe that in practice a sanction of erasure would most probably mean the end of his medical career.

28. Mr Jay, on behalf of the appellant, advanced three principal reasons for saying that the sanction imposed by this Panel was unduly lenient. In advancing those three reasons, Mr Jay frankly accepted that it was a necessary consequence of his argument not simply that erasure was an appropriate penalty but that it was positively mandated in this particular case. He also accepted that his argument that this case crossed the erasure threshold was not of itself enough. He recognised that cases may cross the erasure threshold but nevertheless, in certain circumstances, properly may not necessarily attract the sanction of erasure. His argument is that in this case it was in effect perverse of the Panel not to have subjected Dr Khanna to the sanction of erasure. I put it that way because that is the way in which it emerged in argument. Of course, it all comes back to whether or not the sanction of suspension was unduly lenient.
29. The first point which Mr Jay advanced was that the Panel had erred, and indeed erred in principle he said, with regard to its assessment of Dr Khanna's remorse and insight as regards to the seriousness of what had occurred. I repeat what the Panel had said:

"The Panel did not have the benefit of hearing Dr Khanna in person and could not, therefore, make judgments as to his insight. It has noted, however, that he resigned from his post as a consequence of disciplinary proceedings having commenced against him in relation to Dr K. His letter of resignation and his unsigned statement before the Panel both contain some expressions of remorse."

Mr Jay referred to the resignation letter and the witness statement and he says that when one reads them carefully, in truth they are, in effect, attempts by Dr Khanna to minimise what had happened. Indeed, Dr Khanna had disputed that there was any sexual motivation at all and had denied some of the incidents altogether. Dr Khanna's witness statement, he emphasised, had been rejected by the Panel in that regard.

30. Mr Jay went on to say that in circumstances where Dr Khanna chose not to attend the hearing or to give evidence (Mr Jay meaning by that, I think, oral evidence), it was logically impossible for the Panel to reach any conclusions as to his insight or lack of it from any evidence which he gave. With all respect, I regard that as a quibble. Dr Khanna had expressed some remorse for what he had done. True it is that he did not fully accept the allegations against him. But that is not an aggravating factor, it simply reduces the potential mitigation available. In my view, it is quite wrong completely to sideline the letter of resignation and completely to sideline the unsigned witness statement in the way Mr Jay sought to do. It was a matter for the Panel to assess that. The Panel made it quite clear that because they had not heard from Dr Khanna they could not make judgments as to his insight, so they correctly appreciated the position. At the same time, as it seems to me, the Panel were certainly entitled to say that the letter of resignation and the unsigned statement contained "some" expressions of remorse. Indeed they do. It seems to me this is important, because that finding of the Panel (a finding, in my view, open to it on the evidence) has an impact on the sanction which the Panel imposed which included a requirement for there to be a review before the 12 month suspension period ended. Accordingly, I was unimpressed by that particular ground.
31. The second submission of Mr Jay was to the effect that the Panel had completely underestimated the seriousness of the case and had given insufficient appreciation to its seriousness. Indeed, Mr Jay said this case "cried out" for erasure. In that regard, Mr Jay again referred me to the terms of the Indicative Guidance, and in particular to the indications as to when erasure might be appropriate. I repeat that in terms of the guidance erasure may be appropriate when the behaviour is "fundamentally incompatible with being a doctor and involved any of the following". The following matters listed in the guidance, it is quite true, in some respects are capable of, as it were, attaching a tick to them. But these are all matters of degree. In particular, however, it is, in terms of the guidance, a pre-condition that the behaviour is fundamentally incompatible with being a doctor. But the Panel in terms stated that it was not satisfied that the behaviour of Dr Khanna was fundamentally incompatible with being a doctor. It assessed the matter fully. It is to be taken as experienced in this field and that was a finding which it was entitled to reach. Indeed, if one also goes to the specific guidance with regard to suspension contained in the guidance, one can tick just as many of those, if not more, bullet points as one can with regard to the bullet points relating to erasure.
32. Overall, it does seem to me, with all respect, that Mr Jay on behalf of his clients is seeking to advance their own view of the matter in preference to that of the Panel. But the Panel quite plainly had considered the matter very carefully. Mr Jay was not able to point me to anything which the Panel failed to take into account which it should have taken into account. Mr Jay was not able to point me to anything which the Panel had taken into account which it should not have taken into account. The Panel expressly had found this was a matter of seriousness, in terms found that Dr Khanna had abused, and seriously so, the position of trust; but, set in the context of everything else, the Panel found that what had occurred here was not such as to attract a finding that the conduct was fundamentally incompatible with his continuing to be a registered doctor. In my view, that was a decision which the Panel was entitled to reach.
33. The third and linked point raised by Mr Jay was with regard to an alleged insufficient appreciation of the seriousness of the breach of trust, Mr Jay making it clear that this was not a stand alone ground but in effect informed the other grounds that he advanced. Thus he submitted that the Panel had failed to give adequate weight to the seriousness of the breach of trust. Mr Jay stressed that this was not one isolated incident but a series of incidents. Further, this was not one female junior victim but two, the incidents being separated in point of time. But here too it seems to me that submission cannot really have the force that it is accorded by Mr Jay, precisely because the Panel had due regard to those points. The Panel in terms had said the contact here was unacceptable, had in terms said the misconduct was serious and persistent, had in terms said that it involved a serious abuse of the position of trust. The Panel had all these points in mind. It does seem to me that the Panel also was entitled to reach the view that, set in the context of everything else, this was not sexual misconduct at the higher end of the spectrum, although of course it was serious and very distressing for each of the victims.
34. Overall, therefore, it seems to me that the Panel reached a conclusion which was open to it. I revert also to the question of review at the end of the one year suspension period, because it was not clear to me that over much regard has been had to that by the appellant. It seems to me that that is a significant element of the sanction that was imposed. Dr Khanna will have to satisfy the next Panel that he may properly be restored to the Register, with or without conditions, and the Panel has imposed quite stringent requirements in that regard as to what is to be expected at that review. That, to my way of thinking, confirms that the Panel had all the relevant points well on board and that the criticisms now sought to be made of it are not well-founded.
35. In those circumstances, I dismiss this appeal. Miss Rahman submitted that if the Panel had imposed a sanction of erasure that would of itself have been excessive. She stoutly denied, at all events, that immediate suspension was even a lenient sanction. I need express no view on that. All I need ask myself is: has it been shown to my satisfaction that this sanction of suspension for 12 months was wrong as being unduly lenient? In my view, the appellant has fallen a very long way indeed short of so satisfying me and accordingly, as I say, this appeal is dismissed.
36. MISS RAHMAN: My Lord, I would ask for my costs of the appeal. There is a statement of costs which I hope has been filed.
37. MR JUSTICE DAVIS: Yes, there was. I think I have lost it. Do you have another one?
38. MISS RAHMAN: I do. (Handed).
39. MR JUSTICE DAVIS: Have you seen this, Mr Jay?
40. MR JAY: My Lord, there is no dispute about the costs.
41. MR JUSTICE DAVIS: They come to about one third of yours, Mr Jay, so as a matter of proportionality you have a problem, but you are not disputing those. That is inclusive of VAT, is it?
42. MISS RAHMAN: I think so.
43. MR JUSTICE DAVIS: It ought to be. Mr Jay has very kindly indicated that there is no dispute. It seems to me a reasonable sum and I will summarily assess your costs in the sum of £6,462.73. Twenty-eight days, Mr Jay?
44. MR JAY: Yes, my Lord.
45. MR JUSTICE DAVIS: I think you have the money, your side. Mr Hare, I think, as to you, you pick up your own costs.
46. MR HARE: Yes, I do not make any application, my Lord.
47. MR JUSTICE DAVIS: Any other matters? Thank you all very much for your help.