Case No: CO/13358/2009
Neutral Citation Number: [2010] EWHC 2247 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 3 September 2010

Before :

MICHAEL SUPPERSTONE QC
Sitting as a Deputy Judge of the High Court
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Between :

	WILFRED PUGSLEY	Claimant	
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	GENERAL MEDICAL COUNCIL	Defendant	

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Dennis Matthews (instructed by Messrs Radcliffes Le Brasseur) for the Claimant
Catherine Callaghan (instructed by GMC Legal) for the Defendant

Hearing dates: 1, 2, & 5 July 2010
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Judgment
Michael Supperstone QC : 
1.	This is an appeal under s.40 of the Medical Act 1983 (“the 1983 Act”) by Mr Wilfred Pugsley from the decision of a Fitness to Practise Panel (“the Panel”) of the General Medical Council (“the GMC”) made on 13 October 2009 that his fitness to practise was impaired by reason of deficient professional performance.  The Panel imposed conditions on Mr Pugsley’s registration with immediate effect.  The decision of the Panel was confirmed in a letter dated 14 October 2009.  (A20-34)
Background 
2.	Mr Pugsley has held full registration since 1979.  Since 1996 he has been on the Specialist Register as a cardiothoracic surgeon.  He was a consultant cardiothoracic surgeon at Middlesex University College Hospitals, then moved to Brighton in 1999 where he opened the new Cardiothoracic Unit and in 2001 he took on the task of developing the new Heart and Lung Centre at Wolverhampton.  
3.	In late 2002 as a result of a number of post-operative deaths a review of Mr Pugsley’s practice was undertaken on behalf of the Society of Cardiothoracic Surgeons (“the Society”).  Four recommendations were made and Mr Pugsley underwent a period of supervision in Brighton.  
4.	In early 2005 Mr Pugsley had three in-hospital post-operative deaths and, following an audit, it was decided that he should be excluded from clinical practice.  The Society produced a further report which recommended an extended period of re-training in cardiac surgery.  However it proved very difficult to arrange this and Mr Pugsley decided on a career change.  He was commissioned into the regular RAF with the rank of Wing Commander as a military surgeon and he restricted his NHS work at consultant level to thoracic surgery.  Although he has assisted cardiac surgeons when asked to do so in harvesting veins and assisting under direct supervision in the course of an operation, he has not practised as a consultant cardiac surgeon since early 2005 and he has no intention of returning to such work.  Since 2005 Mr Pugsley has practised as a military surgeon with the RAF, deployed in Iraq and Afghanistan, and as a consultant thoracic surgeon in the Heart and Lung Centre at Wolverhampton.  
5.	In September 2005 the GMC received a complaint from the son of another of Mr Pugsley’s patients, a Mrs Lees, who had died in March 2005.  As a result on 13 December 2005 the GMC’s Interim Orders Panel imposed conditions on Mr Pugsley’s registration for 18 months that he should not carry out elective cardiac surgery unless supervised by another consultant.  Mr Pugsley did not challenge these conditions which lapsed after July 2007.  
6.	On 3 April 2007 the GMC directed there should be a Performance Assessment.  The Performance Assessment took place in January and February 2008.  It was subsequently made clear by the Coroner and by the GMC’s own case examiner that Mr Pugsley was not to blame for Mrs Lees’ death, however by then the assessment had taken place.  The Performance Assessment identified a number of areas of deficient professional performance and the Assessment Team’s Formal Opinion dated 6 April 2008 contained recommendations for Mr Pugsley’s future practice.  The GMC sought to agree undertakings by Mr Pugsley which would be adequate to protect patients and the public interest.  No agreement was reached and Mr Pugsley’s case was therefore referred to the Panel.  
7.	The allegations, in their final form, that Mr Pugsley faced before the Panel at a hearing that took place in September and October 2009 were as follows: 
“That being registered under the Medical Act 1983—
1.	In January and February 2008 you underwent a GMC Performance Assessment; 
2.	In the tests of competence the Assessment Team found that your performance
a.	was unacceptable in, 
i.	the test of knowledge,
ii.	cardiac surgery; and
b.	gave cause for concern in basic surgical skills;
3.	In the peer review the Assessment Team found that your performance 
a.	was unacceptable in non-military general surgery for treatment in emergencies; and,
b.	gave cause for concern in non-military general surgery for, 
i.	assessment of patients’ condition, 
ii.	providing or arranging investigations, 
iii.	providing or arranging treatment; 
4.	The Assessment Team concluded that the standard of your professional performance was deficient in
a.	cardiac surgery, 
b.	non-military general surgery.
5.	Each of the Assessment Team’s findings in respect of heads of charge 2(a)(i), 2(a)(ii), 2(b), 3(a), 3(b)(i), 3(b)(ii) and 3(b)(iii) was correct. 
And by reason of the matters set out above your fitness to practise is impaired by reason of your deficient professional performance.”
8.	At the outset of the hearing before the Panel Mr Pugsley admitted Allegation 1 and during the course of the hearing he also admitted Allegation 2 and Allegation 4(a).  
9.	The Panel found all the allegations denied by Mr Pugsley to be made out save for Allegation 5 in relation to Allegation 3(b)(iii).  In relation to the test of knowledge, cardiac surgery and non-military general surgery for treatment in emergencies, the Panel found Mr Pugsley’s performance to be deficient.  The Panel accepted that as a result of the course which Mr Pugsley had undertaken in September 2009, his fitness to practise in relation to basic surgical skills was not impaired.  However the Panel found that his fitness to practise was impaired in relation to the other areas of deficient performance identified.  
10.	The Panel imposed, by way of sanction, the following 13 conditions relating to Mr Pugsley’s employment with immediate effect (A31-32):  
“1.	You must notify the GMC promptly of any post you accept for which registration with the GMC is required and provide the GMC with the contact details of your employer.  
2.	At any time that you are employed, or providing medical services in non-military general surgery, which require you to be registered with the GMC, you must agree to the appointment of a workplace supervisor nominated by your employer or contracting body, and approved by the GMC.  
3.	You must allow the GMC to exchange information with your employer, or any organisation for which you provide medical services, and any individual involved in your supervision.  
4.	You must inform the GMC of any formal disciplinary proceedings taken against you, from the date of this determination.  
5.	You must inform the GMC if you apply for employment outside the UK.  
6.	You must work with a Postgraduate Dean or a Medical Director of a Trust, or a deputy nominated by one of them, to formulate a Personal Development Plan specifically designed to address the deficiencies in the following areas of your practice: 
a.	Surgical core knowledge, such as those areas given on page 44 of the Performance Assessment;
b.	Non-military general surgery for treatment in emergencies. 
7.	You must forward a copy of your Personal Development Plan to the GMC within three months of the date on which these conditions become effective.  
8.	You must meet with a Postgraduate Dean or the Medical Director of a Trust, or a deputy nominated by one of them, on a regular basis to discuss your progress towards achieving the aims set out in your Personal Development Plan.  The frequency of your meetings is to be set by that person.  
9.	You must allow the GMC to exchange information about the standard of your professional performance and your progress towards achieving the aims set out in your Personal Development Plan with a Postgraduate Dean or the Medical Director of a Trust, or a deputy nominated by one of them, and any other personal involved in your supervision.  
10.	At any time that you are employed, or providing medical services in non-military general surgery, which require you to be registered with the GMC, you must place yourself and remain under the supervision of a remedial supervisor, as agreed by the GMC.  Your Postgraduate Dean or Medical Director of a Trust, or a deputy nominated by one of them, will be asked to assist in identifying a possible supervisor.  
11.	You must disclose the fact that there has been an assessment of your professional performance and that there is an Assessor’s Report to any prospective employers (at the time of application) and any other individual involved in your retraining and supervision, and provide a copy of the report if asked to do so.  
12.	You must not carry out elective cardiac surgery, save as an assistant working under the direct supervision of the Consultant Cardiac Surgeon performing the operation.  
13.	You must inform the following parties that your registration is subject to the conditions, listed at 1 to 12, above: 
a.	Any organisation or person employing or contracting with you to undertake medical work; 
b.	Any locum agency or out-of-hours service you are registered with or apply to be registered with (at the time of application); 
c.	Any prospective employer (at the time of application).”
Grounds of appeal 
11.	Mr Pugsley appealed against the following elements of the Panel’s decision: 
i)	The Panel’s findings of fact in relation to: 
a)	Allegation 3(b)(i); 
b)	Allegation 5 in relation to Allegation 2(a)(i); 
c)	Allegation 5 in relation to Allegation 2(a)(ii); 
d)	Allegation 5 in relation to Allegation 2(b); 
e)	Allegation 5 in relation to Allegation 3(a); 
f)	Allegation 5 in relation to Allegation 3(b)(i); and
g)	Allegation 5 in relation to Allegation 3(b)(ii).  
ii)	The Panel’s finding that Mr Pugsley’s fitness to practise was impaired.  
iii)	The Panel’s decision to impose the order of conditions with immediate effect. 
12.	Mr Pugsley did not appeal against the sanction imposed (were the finding of impairment justified) and at the hearing he did not pursue his appeal against the Panel’s decision to impose the order of conditions with immediate effect.  
Legislative framework 
13.	The GMC has a statutory obligation to investigate whether a doctor’s fitness to practise is impaired.  Section 35C of the 1983 Act, headed “Functions of the Investigation Committee”, provides, so far as is material, as follows: 
“(1)	This section applies where an allegation is made to the General Council against—
(a)	a fully registered person; 
that his fitness to practise is impaired. 
(2)	A person’s fitness to practise shall be regarded as ‘impaired’ for the purposes of this Act by reason only of-- 
(b)	deficient professional performance; 
…
(4)	The Investigation Committee shall investigate the allegation and decide whether it should be considered by a Fitness to Practise Panel.”
By section 55 “professional performance” includes a medical practitioner’s professional competence.
14.	By paragraph 5A(2A) of Schedule 4 to the 1983 Act an assessment of the standard of a registered person’s professional performance may include an assessment of his professional performance at any time prior to the assessment and may include an assessment of the standard of his professional performance at the time of the assessment.  
15.	The General Medical Council (Fitness to Practise) Rules 2004, by Rule 4 provides: 
“(1)  An allegation shall initially be considered by the Registrar. 
(2)  Subject to paragraph (5) and Rule 5, where the Registrar considers that the allegation falls within section 35C(2) of the Act, he shall refer the matter to a medical and a lay Case Examiner for consideration under Rule 8.”
16.	Rule 7(3) provides that “the Registrar may direct that an assessment of the practitioner’s performance or health be carried out in accordance with Schedule 1 or 2”.  Paragraph 2(4) of Schedule 1 provides that “in selecting a medical performance assessor as a member of an Assessment Team, the Registrar shall have regard to the speciality to which the allegation relates.” 
17.	Rule 10 is concerned with Undertakings.  It provides that: 
“(1)	Where, before an allegation has been determined by the Case Examiners under Rule 8(2), or referred to the Committee or a FTP [Fitness To Practise] Panel, the Registrar considers it appropriate to do so, the Registrar may refer the allegation to the Case Examiners for consideration under this Rule.  
(2)	If after considering the allegation it appears to the Case Examiners that—
(a)	the practitioner’s fitness to practise is impaired
(b)	… they may recommend that the practitioner be invited to comply with such undertakings as they think fit (including any limitations on the practitioner’s practice).”
If within the specified time the practitioner confirms in writing that he is prepared to comply with the undertakings recommended under paragraph (2), the Case Examiners shall cease consideration of the allegation and make no decision under Rule 8(2), and the Registrar shall notify the practitioner and the maker of the allegation (if any) in writing accordingly (Rule 10(4)).  However if the practitioner does not agree to comply with such undertakings the Registrar may refer the allegation for determination by a FTP Panel (Rule 10(8)).  
18.	The proper approach for the Court to adopt on an appeal such as the present was considered by Mitting J in R (Zygmunt) v General Medical Council [2009] LS Law Med 219, when reviewing earlier authorities.  He said at paragraph 2: 
“This appeal is by way of rehearing: see 52PD 116(2).  I must allow the appeal if persuaded that the decision of the panel was wrong: CPR 52.22(3)(a) and General Medical Council v Meadow [2006] EWCA Civ 1390; [2007] LS Law Med 01 paragraph [125].  Because its findings involve judgments about the reliability and truthfulness of witnesses who gave oral evidence in front of it, I must accept its findings of fact unless material errors are clearly demonstrated; and because in determining sanctions, once misconduct  and impairment of fitness to practise were found, the Panel is exercising a discretion entrusted to an experienced specialist body albeit chaired by a lay member and containing an equal number of lay and professional members, I must give special place to its judgment: Fatnani and Raschid v General Medical Council [2007] EWCA Civ 46, [2007] 1 WLR 1460, paragraph [20] and [26].”
In Chyc v General Medical Council [2008] EWHC 1025 (Admin) Foskett J said at paragraph 4: 
“An appeal under these rules does not require permission to appeal.  The appeal is technically by way of rehearing, but in reality involves a review of the evidence and material before the Panel in accordance with the parameters set out in Gupta v GMC [2002] 1 WLR 1691 and Ghosh v GMC [2001] 1 WLR 1915, conveniently summarised by Stanley Burnton J, as he then was, in Threlfall v General Optical Council [2004] EWHC 2683 (Admin) at paragraph 21 where he said this: 
‘Because it does not itself hear the witnesses give evidence, the court must take into account that the Disciplinary Committee was in a far better position to assess the reliability of the evidence of live witnesses where it was in issue.  In that respect, this court is in a similar position to the Court of Appeal hearing an appeal from a decision made by a High Court Judge following a trial.  There is, however, an important difference between an appeal from a High Court Judge and an appeal from a Disciplinary Committee.  The Disciplinary Committee possesses professional expertise that a High Court Judge lacks… This court appreciates that such a Disciplinary Committee is better qualified to assess evidence relating to professional practice, and the gravity of any shortcomings, and it therefore accords the decision of the Committee an appropriate measure of respect, but no more: see Ghosh v General Medical Council… [2001] 1 WLR 1915, at [33] and [34] and Preiss v General Dental Council… [2001] 1 WLR 1926 at [26] and [29].  These decisions make it clear that the court should be more ready to overrule a disciplinary tribunal than previously appeared to be the case.  It however remains the position that an appellant must establish an error, of law or fact or of judgment, on the part of the tribunal.”
19.	The procedure before a FTP Panel is set out in Rule 17 of the 2004 Rules, the material part of which in Rule 17(2) states: 
“(i)  The FTP Panel shall consider and announce its findings of fact; 
(j)  The FTP Panel shall receive further evidence and hear any further submissions from the parties as to whether, on the basis of any facts found proved, the practitioner’s fitness to practise is impaired; 
(k)  The FTP Panel shall consider and announce its findings on the question of whether the fitness to practise of the practitioner is impaired, and shall give its reasons for that decision; 
…
(n)  The FTP Panel shall consider and announce its decision as to the sanction or warning, if any, to be imposed or undertakings to be taken into account and shall give its reasons for that decision.”
20.	There are three stages to the decision-making task of the FTP Panel.  Stage 1 is determination of the facts.  Stage 2 is determination of impairment of fitness to practise.  Stage 3 is determination of sanction.
21.	At Stage 2 the Panel must first consider whether there has been deficient professional performance, and second, if so, whether the practitioner’s fitness to practise was impaired because of deficient professional performance.  In R (Calhaem) v General Medical Council [2008] LS Law Med 96 at para 39 Jackson J, as he then was, reviewed the authorities and said: 
“(3)  ‘Deficient professional performance’ within the meaning of 35C(2)(b) is conceptually separate both from negligence and from misconduct.  It connotes a standard of professional performance which is unacceptably low and which (save in exceptional circumstances) has been demonstrated by reference to a fair sample of the doctor’s work.  
(4)  A single instance of negligent treatment, unless very serious indeed, would be unlikely to constitute ‘deficient professional performance’.”  
In Cheatle v General Medical Council [2009] LS Law Med 299 Cranston J considered the meaning of “impairment of fitness to practise”.  He said: 
“[17]  ‘Impairment of fitness to practise’ is a somewhat elusive concept.  In her fifth Shipman Report (Safeguarding Patients: Lessons From the Past – Proposals for the Future, Cm 6394, 2004) Dame Janet Smith opined that its advantage was that it was capable of embracing the range of problems which the GMC habitually encountered, misconduct (including criminal conduct), deficient professional performance and adverse health and determinations by other regulators.  However, it was unclear what it meant and even greater difficulties would be encountered with the concept that with those of ‘serious professional misconduct’ and ‘seriously deficient performance’ (paras 25.42-25.43).  Dame Janet helpfully set out the reasons why a decision-maker might conclude that a doctor was unfit to practice or that his fitness to practise was impaired.  Four reasons recurred in the examples she had examined: 
‘(a) that the doctor presented a risk to patients, (b) that the doctor had brought the profession into disrepute, (c) that the doctor had breached one of the fundamental tenets of the profession and (d) that the doctor’s integrity could not be relied upon.  Lack of integrity might or might not involve a risk to patients.  It might or might not bring the profession into disrepute.  It might be regarded as a fundamental tenet of the profession.  I think it right to include it as a separate reason why a doctor might be regarded as unfit to practice, because it is relevant even when it arises in a way that is quite unrelated to the doctor’s work as a doctor (para 25.50).’ 
[18]  In response to Dame Janet’s observation that the GMC should formulate the standards, criteria and thresholds by which impairment of fitness was to be judged, the GMC’s Indicative Sanctions Guidance for Fitness to practise Panels, April 2005 (‘the Indicative Sanctions Guidance’) provides that 
‘It is clear that the GMC’s role in relation to fitness to practise is to consider concerns which are so serious as to raise the question whether the doctor concerned should continue to practice either with restrictions on registration or at all (para 11).’ 
As Mitting J accurately observed in Zygmunt v General Medical Council [2008] EWHC 2643 (Admin), [2009] SL Law Med 219, this effectively begs the question.”
22.	In Cheatle at para 15 Cranston J expressed the view that the degree of deference that would be accorded to a professional disciplinary tribunal like a Fitness to practise Panel will depend on the circumstances; and one factor may be the composition of the tribunal.  He said: 
“In the present case the Panel had three lay members and two medical members.  For what I know the decision the Panel reached might have been by majority, with the three lay members voting one way, the two medical members the other.  It may be that some at least of the lay members sit on Fitness to practise Panels regularly and have imbibed professional standards.  However, I agree with the submission for the appellant in this case that I cannot be completely blind to the current composition of Fitness to practise Panels.”
However the Court of Appeal in Southall v General Medical Council [2010] EWCA Civ 407 have made it clear that there is no rule that there should be a medical panellist whose speciality matches the practitioner.  Leveson LJ (with whose judgment Dyson LJ and Waller LJ agreed) said at para 67: 
“Far from it being appropriate to have an expert from the same field, I consider the converse to be the case: … any issues requiring particular specialist knowledge should be dealt with through the calling of expert evidence; neither the GMC nor the doctor would be in a position to challenge the opinion of a member of the panel and, if a professional in the same field, the risk would be that a decision would be made on the basis of an expert view that had not been the subject of evidence or argument.”
It must follow that deference to the views of the Panel does not depend on the composition of the Panel.  
23.	In the same case of Southall v General Medical Council the Court of Appeal considered the extent to which reasons should be given.  Leveson LJ said: 
“55.  For my part, I have no difficulty in concluding that, in straightforward cases, setting out the facts to be proved (as is the present practice of the GMC) and finding them proved or not proved will generally be sufficient both to demonstrate to the parties why they won or lost and to explain to any appellate tribunal the facts found.  In most cases, particularly those concerned with comparatively simple conflicts of factual evidence, it will be obvious whose evidence has been rejected and why.  In that regard, I echo and respectfully endorse the observations of Sir Mark Potter.  
56.  When, however, the case is not straightforward and can properly be described as exceptional, the position is and will be different.  Thus, although it is said that this case is no more than a simple issue of fact (namely, did Dr Southall use the words set out in the charge?), the true picture is far more complex.  First, underlying the case for Dr Southall was the acceptance that Mrs M might perfectly justifiably have perceived herself as accused of murder with the result that the analysis of contemporaneous material some eight years later is of real importance: that the evidence which touched upon this conversation took over five days is testament to that complexity.  Furthermore it cannot be said that the contemporaneous material was all one way: Dr Corfield’s note (and, indeed, her evidence) supported the case that it was (or at least could have been) Mrs M’s perception alone.  Ms Salem’s note (accepted by Mrs M as 100% accurate so far as it went) did not support the accusation and her evidence was that if those words had been said, she would have recorded them.  I am not suggesting that a lengthy judgment was required but, in the circumstances of this case, a few sentences dealing with the salient issues was essential: this was an exceptional case and, I have no doubt, perceived to be so by the GMC, Dr Southall and the Panel.
57.  Perhaps because of the nature of the case, the Panel did, of course, provide a few sentences of reasons but, in my judgment they were simply inadequate and did not start to do justice to the case. …”
The parties’ submissions
24.	The submissions of Mr Matthews, for the appellant, on the grounds of appeal were as follows: 
(i)(a) Allegation 3(b)(i) 
25.	The allegation relates to “patients” in the plural, yet the assessors only found that Mr Pugsley’s performance gave cause for concern in non-military general surgery for the assessment of the condition of one patient, Patient 45.  The Assessment Team in the body of their report were critical of Mr Pugsley in relation to Patient 51, but in fact all they were saying was that the SHO did not recall that specific blood tests were undertaken; that being so, it did not really amount to a criticism of Mr Pugsley’s assessment.  
(i)(b) Allegation 5 in relation to Allegation 2(a)(i)
26.	When relying on the test of knowledge score, the Panel failed properly to consider whether the marks fairly reflected his performance as a surgeon or whether the marking was reliable.  The score conflicted with the evidence as to his abilities described by those interviewed by the assessors and as described to the Panel by witnesses called on his behalf.  The marking was distorted by Mr Grötte’s strict approach which was adopted without understanding the system.  Moreover Mr Pugsley was significantly disadvantaged in the written test in that: (1) he was not provided with the timetable for the assessment in advance and did not therefore know that he was going to sit a written examination; (2) he was led to believe that how long he took to answer the questions was not important, then after taking some time over the first question another assessor made it clear that time was a factor and this left him with insufficient time to do himself justice; and (3) while not a criticism of the assessment process, he had just returned from three months in Basra during which time he had practiced little.  
(i)(c) Allegation 5 in relation to Allegation 2(a)(ii)
27.	When it was clear that Mr Pugsley had ceased to practice as a consultant cardiac surgeon and had no intention of returning to such work, he should not have been assessed in that speciality.  The assessment should have been of what he was actually doing and intended to do in the future.  The assessors found no fault with his past cardiac work but not surprisingly he did not do well in the surgical skills test undertaken in 2008.  He had given up elective cardiac surgery in 2005.  
28.	There are some consultants on the specialist register of cardiothoracic surgeons who are in fact cardiac surgeons and there are others on it who are thoracic surgeons and there are others who are both.  The fact that some do not practice in thoracic surgery and others who do not practice in cardiac surgery does not disqualify them from being on this specialist register.  (See evidence of Mr Grötte, B2/D3/23G-24C).  
(i)(d) Allegation 5 in relation to Allegation 2(b)
29.	There were two criticisms of Mr Pugsley’s basic surgical skills: first, his knots.  In order to pass this part of the test, the candidate had to use a reef or surgeon’s knot.  Mr Pugsley used a slip or granny knot and therefore failed, but Mr Turner, the assessor, acknowledged that his knots were effective.  Second, criticism was made of his use of toothed rather than smooth forceps when removing a lymph node, yet other consultant surgeons in their evidence supported his choice of forceps.  
 (i)(e)-(g) Allegation 5 in relation to Allegations 3(a), 3(b)(i) and (ii)
30.	All of these matters relate to Patient 45.  Patient 45 was the only patient in respect of whom criticism was made.  She had been referred to the surgical assessment unit by her GP with a suspected abscess in her right breast.  She looked well and the oxygen saturation of 93% which appears at one point in the notes and which was relied on by the assessors as indicating a problem is contradicted by the normal 98% in the further set of notes and by Mr Pugsley’s own recollection.  Mr Pugsley spent time with the patient, gained her confidence, examined her (but did not lift up her right breast to undertake a full examination) and found inflammation and quite a large firm mass.  He accepted that a full examination would have included lifting the breast.  He thought that she had cancer.  There were no signs of sepsis and he saw no risk of her going into septic shock.  She was diabetic and had a needle phobia, but she said that her diabetes was well controlled and that it had been checked by her GP that morning.  She was fit to go home and was determined to do so, but Mr Pugsley persuaded her to come back the following day as he wanted to refer her to a breast specialist.  He saw her early the following morning and dealt with the referral, typing and faxing the letter himself so as to save time.  The patient was subsequently seen by the breast specialist and treated in the breast clinic.  As such he correctly referred her to an appropriate specialist.  She did not come to harm in any way.  The treating clinicians at Wolverhampton considered that the criticisms that were made of Mr Pugsley were unfair and the suggestion that the patient was at risk of developing septic shock unfounded.  The Panel appears to have ignored this evidence.  Moreover this one patient did not constitute a fair sample of his work.  Allegation 5 in respect of heads of charge 3(a), 3(b)(i) and (ii) refer respectively to “emergencies”, “patients” and “investigations”, all in the plural.  Criticisms of Mr Pugsley’s performance in relation to one patient alone should not have been regarded as sufficient to justify the overall criticisms that were made of him.  
31.	The Panel failed to give proper reasons for their decision, in particular in relation to the charges relating to Patient 45.  They failed to explain properly why they concluded as they did with regard to Patient 45’s diabetes and risk of sepsis in the light of Mr Pugsley’s evidence.  
 (ii) Impairment 
32.	Mr Pugsley’s fitness to practise was not impaired by reason of his performance.  The Panel based its finding of impairment on three criticisms of Mr Pugsley: his test of knowledge score, cardiac surgery and his performance in relation to Patient 45.  In finding that his fitness to practise was impaired the Panel seems to have ignored the substantial body of evidence from those who observed the standard of his work on a day to day basis.  Further, the Panel’s conclusions were not based on a fair sample of his work as they should have been.  
33.	As for the three deficiencies: (i) Test of Knowledge: the Panel adopted a blinkered approach to the test scores when they should have made an overall assessment by reference to the knowledge that he must have had in order to achieve the consistently good performance in his day to day practice.  (ii)  Cardiac Surgery: by the time of the hearing he had not practiced as a consultant cardiac surgeon for over four years.  The Panel accepted his sincerity in saying that he had no intention of resuming such work.  That should have been enough.  (iii) Patient 45: his care of this patient did not begin to reach the point of justifying a finding of impairment.  
34.	Miss Callaghan, for the GMC, responded as follows: 
(i)(a) Allegation 3(b)(i)
35.	This allegation does no more than record the factual outcome of the peer review part of the assessment.  It is a matter of fact that the Assessment Team found that Mr Pugsley’s performance gave cause for concern in non-military general surgery for the assessment of patients’ (in the plural) condition (see section 4.1 of the Report).  
 (i)(b)  Allegation 5 in relation to Allegation 2(a)(i) 
36.	Mr Pugsley failed the test of knowledge.  In his final interview he stated that he “thought the process fair”.  In his evidence in chief he stated, in respect of his score, “I have to admit it was just poor exam technique”.  He now complains that one of the examiners was particularly tough, but he failed to reach the pass mark of 85% in the independent scores given by each of the three examiners.  The quotation from Mr Grötte’s evidence in which Mr Grotte states that he was not familiar with the scoring system is misleading since Mr Grotte was there referring to the scoring system for the Practical Test of Surgical Skills and not the test of knowledge.  
 (i)(c) Allegation 5 in relation to Allegation 2(a)(ii) 
37.	Mr Pugsley accepted that he was no longer competent in cardiac surgery and had given up practice in this area.  However there is no specialism on the medical register of only thoracic surgery.  That being so, without formal undertakings or conditions on his registration, Mr Pugsley would be free to return to practise cardiac surgery as a specialist at any time.  
 (i)(d) Allegation 5 in relation to Allegation 2(b)  
38.	The Panel made no finding of deficient performance or impairment in relation to Mr Pugsley’s basic surgical skills.  The Assessment Team had rightly expressed concerns about his knots and use of toothed forceps, but by the time of the panel hearing he had undergone an Intercollegiate Basic Surgical Skills course and as a result Mr Turner stated that he no longer had any concerns about Mr Pugsley’s basic surgical skills.  
 (i)(e)-(g)  Allegation 5 in relation to Allegations 3(a), 3(b)(i) and (ii)
39.	In relation to Patient 45 Mr Pugsley failed to lift the patient’s breast and the expert called on behalf of Mr Pugsley accepted that the entire surface of the breast should have been examined.  Further, Mr Pugsley failed to do a blood or urine test on the patient who was a diabetic.  In addition the oxygen saturation reading of 93% indicated there was a risk of her going into septic shock.  There was sufficient basis for the Assessment Team’s and the Panel’s determinations that his performance was unacceptable and a cause for concern.  The purpose of the assessment is to form an overall judgment on a doctor’s practice on the basis of a necessarily limited sample group.  There is nothing wrong about the Panel’s conclusion that on the basis of his treatment of one patient, Mr Pugsley’s performance gave cause for concern about his treatment of patients generally.  
40.	The Panel provided adequate reasons for their conclusions and Mr Pugsley cannot have been unaware of why the Panel found as it did.  
 (ii) Impairment
41.	The Panel did have regard to the evidence that was adduced as to the standard of Mr Pugsley’s work, but formed an overall judgment that his professional performance was deficient and that his fitness to practise is impaired.  The Panel was entitled not to accept his assertions that he had remedied the deficiencies in his practice by reading textbooks.  
Discussion
 (i)(a) Allegation 3(b)(i)
42.	As a matter of fact the Assessment Team did find that Mr Pugsley’s performance gave cause for concern in non-military general surgery for the assessment of patients’ (in the plural) condition.  At the conclusion of section 4.1 of the peer review part of the assessment the report states, “In summary, therefore, although the majority of the judgments were acceptable this [i.e. the case of Patient 45] illustrates an area where Mr Pugsley lacks experience in assessment of emergency cases.” 
(i)(b) Allegation 5 in relation to Allegation 2(a)(i) 
43.	It is a fact that Mr Pugsley failed the core knowledge test.  This was a test considered relevant to the clinical practice of all surgeons.  All three assessors gave him a mark below the minimum acceptable score of 85%.  His performance was therefore unacceptable.  Moreover in addition to scoring the knowledge test according to a structured marking schedule, the assessors gave a global judgment supported by statements.  All three assessors considered there was at least cause for concern in relation to a number of individual answers to questions.  
44.	In my view the specific complaints made about the testing process neither individually nor cumulatively amount to an excuse for the scores achieved or the judgments of the assessors.  First, Mr Pugsley did not know he had to sit a written test, but he knew he had to undergo a core knowledge test.  The knowledge he was tested on was the core knowledge a surgeon would be expected to use on a day to day basis in practice.  Second, the test scores and judgments do not suggest he ran out of time or would have achieved a minimum score of 85% if he had had more time.  Third, he had been back from Basra for three weeks by the time of the test.  Fourth, Mr Grötte’s evidence was that he was not familiar with the scoring system for the Practical Test of Surgical Skills, not that he was not familiar with the test of knowledge scoring system.  Fifth, the complaint that the test of knowledge score was not representative of Mr Pugsley’s actual knowledge as conveyed by his work is misconceived.  At Stage 1 (findings of fact) the Panel only had to make a decision as to whether the assessors were correct in finding his performance in the test of knowledge unacceptable.  Sixth, neither in his final interview nor in his evidence in chief before the Panel did Mr Pugsley suggest that the process was unfair.  
 (i)(c) Allegation 5 in relation to Allegation 2(a)(ii) 
45.	I have some sympathy for Mr Pugsley in relation to this allegation, as did the Panel.  The GMC accepted that he had not practiced cardiac surgery since 2005 and that it was not his intention to return to practice in this area.  However there is no specialism on the medical register of only thoracic surgery (see the General and Specialist Medical Practice (Education Training and Qualifications) Order 2003).  Therefore without formal undertakings or conditions on his registration, Mr Pugsley would be free to return to cardiac surgery as a specialist at any time.  
46.	If Mr Pugsley’s performance as a cardiac surgeon had been the sole allegation it could have been dealt with by way of undertakings.  Indeed Mr Pugsley had offered to give the undertaking in the terms of Condition 12 that was imposed by the Panel.  However agreement could not be reached between the parties as to appropriate undertakings in relation to other allegations, so a hearing before the Panel became necessary.  
47.	In my view the GMC cannot be criticised for making this allegation in the first place or for proceeding with it in the circumstances of the case.  
48.	The complaint by the son of Mrs Lees in 2005 concerned Mr Pugsley’s cardiac surgery skills.  The GMC had a statutory obligation to investigate a complaint that was capable, if proved, of establishing that his fitness to practise was impaired by reason of professional performance (s.35C(1) and (4) of the 1983 Act).  This was so albeit by the time of the assessment in January/February 2008 Mr Pugsley had ceased practice in cardiac surgery.  
49.	The purpose of a Practical Test of Surgical Skills is to carry out an assessment of the surgeon’s skills at the date of assessment.  In the tests of competence specific to cardiac surgery Mr Pugsley’s performance was assessed as being below that of a consultant and about the level of a junior specialist registrar.  In their Formal Opinion the assessors said, in relation to cardiac surgery, “In this area Mr Pugsley wishes to cease his professional practice.  In theory he could be improved by retraining but this would need to be an extended period of retraining.  An attempt was made to gain a retraining package for him in 2005 which was unsuccessful.  We cannot see how a further retraining package which would need to be at least six months could be arranged.  It is our opinion, and Mr Pugsley’s opinion, that he should cease professional practice in the area of cardiac surgery.”
50.	Mr Pugsley did not dispute before the Panel this assessment of his cardiac skills and during the course of the hearing he admitted Allegation 4(a): that the Assessment Team concluded that the standard of his professional performance was deficient in cardiac surgery.  
51.	At the time of the assessment he was assisting with elective cardiac surgery, harvesting veins and he expected to carry out emergency cardiac surgery in the military.  He said in evidence “When taking or harvesting a vein and assisting you are very much acting in either a junior or middle grade registrar capacity and there is always a consultant present” (see B/D3/71-72). 
 (i)(d) Allegation 5 in relation to Allegation 2(b) 
52.	By the time of the hearing before the Panel, Mr Pugsley had undergone the BSS course and as a result Mr Turner stated that he no longer had any concerns about Mr Pugsley’s basic surgical skills.  The Panel made no finding of deficient performance or impairment in relation to this matter.  As such this aspect of the assessment played no part in the decision to find Mr Pugsley’s fitness to practise to be impaired.  
53.	In any event the only finding by the assessors was that there was a cause for concern in relation to Mr Pugsley’s basic surgical skills.  In my view the Panel was entitled on the evidence to uphold their finding.  Mr Pugsley did not tie knots or use forceps in the way he was expected to do or asked to do by the assessors.  It was not therefore clear whether he was able to tie the knots or use the forceps in the way they wanted.  Mr Turner said, “We all perceived problems with the lymph nodes [that is the forceps] and also there were problems with the knot tying” (B/D2/69 F-G).  In relation to knots Mr Turner said “granny knots are not secure knots, and they are not flat knots and, therefore, to tie a granny knot is certainly not acceptable.”  (B/D2/9C-D).  He explained why particular emphasis is placed on the knots, “There is always a concern that the knots will slip and if it is on a blood vessel then there could be leakage from that blood vessel and haemorrhage.”  (B/D2/9E-F).  As for forceps Mr Turner said “If he was removing the node with tooth forceps, then there is a potential to damage the fine structure of the lymph node, which might give the pathologist difficulty in identifying any pathology within the node.”  (B/D2/47G-H).  
 (i)(e)-(g) Allegation 5 in relation to Allegations 3(a), 3(b)(i) and (ii) 
54.	No complaint was made about the treatment of Patient 45 and there is no evidence that she suffered in any way as a result of Mr Pugsley’s intervention.  That being so it is submitted on Mr Pugsley’s behalf that it was unfair that the assessors made the findings they did by reference to this one case and that the Panel was wrong to uphold those findings.  
55.	However in my view this is to overlook a number of important matters.  The assessors were plainly entitled to assess Mr Pugsley in the area of non-military general surgery.  He carried out general surgery in a military context and therefore it was important he possessed general skills.  (See evidence of Mr Whitbread, Defence Consultant Advisor in Surgery, B/D6/21F-H).  Further it was perfectly proper to use the case of Patient 45 as part of a case based discussion because it was illustrative of a wide range of issues that arise in general practice.  Mr Silverman said: 
“We reviewed a large number of clinical records of patients that Mr Pugsley had been involved [with] and picked out a selection which would represent the broad spectrum of practice and the categories of Good Medical Practice, so that we were able to discuss various different issues with him and use the cases as a kind of skeleton for that, both to pull out areas of good practice and other areas as well to give a fair overview.” (B/D3/3A-B).  
The assessors concluded that the case of Patient 45 “illustrated a lack of experience in general surgery.”  (C1/28).  The evidence of Mr Silverman was as follows: 
“Q.  Finally, it might be said well this is just one case and, therefore, it is unfair, and not representative of his practice in the area of general surgery.  What would you say with regard to that?  
A.  I would agree it is only one case, but it is a case which illustrates some fairly basic principles which are important for patient management and, you know, general surgical cases.  I think it was a reasonable area to discuss the management and principles underlying the management.  
Q.  Just to press you a little more on the basic principles which this case highlights.  
A.  The two aspects of it are examination of a patient with a breast problem and assessment of a patient with a breast problem, and the other aspect is management of somebody with diabetes.”  (B/D3/6C-F).  
56.	Turning to the specifics and first, the breast aspect.  Mr Turner said “At any routine examination of the breast, the breast must be lifted up.” (B/D2/15B-C).  In this case Mr Pugsley failed to examine the breast properly; he did not lift up the breast as he should have done and there was no evidence of any examination of nodes.  The relevance of examining the nodes is to see “whether there was any spread [of] the cancer into the lymph nodes and the axilla which would suggest that the cancer had moved outside the confines of the breast.”  (Mr Turner at B/D2/16G-H).  
57.	Mr Pugsley told the Panel that he thought the patient was probably suffering from cancer (B/D3/55A-B).  However the contemporaneous evidence suggests that at the time, not having lifted up the breast, his diagnosis was mastitis, not cancer.  Mr Sainsbury described “mastitis” as “a non-diagnosis… It is a catch-all phrase for an inflammation of the breast.”  (B/D4/49C-D).  In his letter to Mr Isgar dated 6 September 2007 he referred merely to her having “a firm mass in the upper outer quadrant”.  Mr Turner said “I do not see that he has suspected cancer in any of the notes that he has made” (B/D2/52G-H).  Mr Silverman said “I thought that was not acceptable because this lady was past middle age and any lady presenting with a problem with her breast in that age group it has to be in the front of your mind it might be cancer and so it has to be part of the differential diagnosis”.  (B/D3/4A-B).  The Panel probed with Mr Pugsley the fact that he did not write the word “cancer” in the letter to Mr Isgar or in the clinical notes (B/D4/22D-G).  In my view, having heard his responses to their questions the Panel was entitled to consider that he had failed to diagnose cancer.  Mr Turner said that if he had conveyed to Mr Isgar that this was a carcinoma Mr Isgar “might” have seen the patient earlier than he did (B/D2/64B-C).  
58.	The second aspect of the case was diabetes.  The assessors stated “the patient was diabetic and from the vital signs the patient could have developed septic shock.  Mr Pugsley did not seem to realise this and allowed her to go home.”  (C1/28).  Septic shock is “a very serious condition where bacteria go round the bloodstream and cause failure of the kidneys and other organs, potentially multi-organ failure if not treated properly with supported methods, which is intravenous fluids and antibiotics.” (Mr Turner at B/D2/19E-F).  The Panel asked Mr Turner “Coming now to your concern over the possibility of septic shock, was your concern with Mr Pugsley more about him not seeming to consider the possibility, or was it more that it was a possibility?”  He replied “It was the fact that, from the information we had, it was not considered.”  (B/D2/66C-D).  The Panel then asked Mr Turner “Coming to the problems with diabetics, if you are diabetic and you get an infection or sepsis, what happens to your diabetic control?”  He responded “It goes out of control, you get a high blood sugar.”  (B/D2/66E-F).  
59.	Before the patient was allowed to go home Mr Pugsley should have checked her blood sugar.  In the case based discussion this was taken up with him, but he “did not volunteer checking blood sugar despite prompting” (B/D3/5F-H).  In his evidence to the Panel Mr Pugsley referred to a number of factors as explaining why he did not check her blood sugar: she looked well, her GP had checked her blood sugar that morning, she had a needle phobia (B/D4/6D-H).  However none of these reasons were mentioned in the contemporaneous evidence (B/D2/61H-62C) and Mr Pugsley did not say to the assessors that the GP had tested her blood that morning (B/D3/12F-G).  Even if the GP had checked her blood sugar that morning, Mr Pugsley should still have checked it (B/D2/63E-F); she could have been given a urine test; diabetics can look well but not be well (B/D3/16H).  
60.	As for the discrepancy between 98% and 93% in the oxygen saturation levels as recorded in the nursing notes (D30-36), the Panel heard evidence but made no findings on it.  The Panel was nevertheless entitled to reach the view that it did on the evidence that there was a risk of septic shock and that Mr Pugsley did not take steps to avoid it.  
61.	Mr Millar, the Medical Director of the Royal Wolverhampton Hospitals NHS Trust, was asked about the criticisms that were made of Mr Pugsley’s care of Patient 45.  He said: 
“I did not have discussions with Mr Pugsley.  I certainly had discussions with the two consultant surgeons [Mr Williams and Mr Badger] and the breast surgeon [Mr Isgar] that the patient was referred to.  The opinions that came my way were that the criticisms were unfair, unfounded.  This was a lady who was anxious, needle phobic, wanted to go home, difficult to manage because she was so agitated and anxious and Mr Pugsley referred her on appropriately to the right person very rapidly indeed and sorted the problem out.” (B/D6/9E-F).  
However when Mr Millar was asked whether as the patient was diabetic she ought to have had her blood sugar levels checked before she was released, he said “I cannot recall that detail”.  He was then asked whether given his background, as an oral and maxillofacial surgeon, he was in a position to comment on that or not.  He replied: 
“I find it difficult, because I do not know the specifics of the particular case.  I cannot recall that she was diabetic, to be honest.” (B/D6/16D-F).  
Mr Williams in his evidence said that he had never seen anybody go into septic shock from breast sepsis.  However he added “Without having seen the lady, I cannot really comment, but I think it would have been unlikely that septic shock would have been the issue, from the information that I have got.”  (B/D7/7B-C).  
62.	In my judgment the Panel was fully entitled to make the findings of fact it did, having heard and assessed all the evidence after a 12 day hearing.  
 (ii) Impairment
63.	The Panel addressed the question of impairment in two stages as it was required to do.  It took into account the relevant authorities which Counsel had drawn to its attention.  In reaching its decision on impairment the Panel accepted the advice of the Legal Assessor.  
64.	The Legal Assessor advised the Panel that there can only be impairment if there is deficient professional performance and, therefore, the Panel should engage in a two-stage process.  First, the Panel should decide whether its findings at Stage 1 constitute deficient professional performance.  If it is the Panel’s judgment that there was deficient professional performance, it should then go on to consider whether, by reason of this Mr Pugsley’s fitness to practise is impaired.  
65.	The Panel found that the assessors were correct to find that Mr Pugsley’s professional performance was unacceptable in relation to the following areas.  The Panel stated: 
“(i)  The tests of knowledge Head of Charge 2(a)(i)
In relation to the tests of knowledge, the Assessors reported that you scored 77.8% and that the minimum acceptable level was 85%.  
(ii)  Cardiac surgery – Head of Charge 2(a)(ii) 
In relation to cardiac surgery, the Panel noted that you have accepted that your performance was deficient.  
The Panel considered the case of Krippendorf to which it had been referred, and the principle that performance is to be assessed on the work that the doctor has actually been doing.  The Panel is satisfied that cardiac surgery was a relevant area of assessment because you had been performing it sufficiently close in time to the Assessment and because, by virtue of your registration as a cardiothoracic surgeon, you are still entitled to do so.  
(iii)  Non-military general surgery for treatment in emergencies – Head of Charge 3(a) 
Whilst the evidence relied upon by the Assessors concerned only one patient, the Panel has already determined, in its determination on the facts, that the risks to that patient were serious.  
It has also taken account of the criticisms made by the Assessors and the reasons for their findings in relation to both non-military general surgery and cardiac surgery.  
Taking together these criticisms, the Panel determined that your performance, at the time of the Assessment was deficient.”  (A27-28)
66.	The Panel then went on to consider whether by reason of this Mr Pugsley’s fitness to practise is impaired.  In reaching its decision, the Panel stated that it took into account all relevant factors, for example, “any steps you have taken to acknowledge your deficiencies and any action to remedy them.  Accordingly the Panel noted the entire contents of D4, the bundle of documents submitted on your behalf.”  
67.	The Panel accepted that Mr Pugsley had remedied the concerns that there were in relation to his basic surgical skills.  It then went on to consider the areas of his practice which the assessors found to be unacceptable and which the Panel considered amount to deficient professional performance.  The decision of the Panel was as follows: 
“(1)  The test of knowledge – Head of Charge 2(a)(i) 
The Panel noted Mr Matthews’ submission that you have undertaken relevant reading.  It also had regard to the five textbooks produced in evidence.  The Panel notes that these are appropriate, recognised textbooks in the field of basic surgical knowledge, including the assessment, investigation and treatment of patients in emergencies.  
However there was no evidence of corresponding reflection on your learning needs as identified in your test of knowledge.  The Panel also would have been assisted if there had been more documentary evidence of your now having an acceptable level of basic surgical knowledge, for example, with end-of-module test scores from online resources, such as those offered by two of the books exhibited, or feedback from organisers of live courses.  Therefore, the Panel has concluded that it has not received sufficient evidence that you have remedied the deficiencies in your basic knowledge.  
(2)  Cardiac Surgery – Head of Charge 2(a)(ii) 
In relation to cardiac surgery the Panel noted that you have accepted that your performance was deficient and remains deficient, and that you voluntarily and honourably chose to give up your practice in this area.  The effect of you decision is that you have not practised cardiac surgery at Consultant level since 2005.  Nevertheless, the position is that you could practise cardiac surgery.  Whilst the Panel has no reason to doubt your sincerity when you say that you have no intention of performing cardiac surgery at a Consultant level, the Panel has a duty to act in the public interest, which includes amongst other things, the protection of patients.  Further, the Panel has not been provided with any evidence to suggest that you have remedied your practice in this regard. 
(3)  Non-military general surgery for treatment in emergencies – Head of Charge 3(a)
Again, the Panel noted Mr Matthews’ submission that you have undertaken relevant reading.  The Panel considered the evidence of the medical textbooks you have read.  It paid regard to the fact that you completed a course on Emergency Surgery for the On-Call General Surgeon at The Royal College of Surgeons of England on 27-29 May 2008.  The Panel has concluded, in the light of the insufficiency of evidence about your reading and about the details of this course and their impact on your practice, that you have failed to remedy adequately this area of your practice.  
In all the circumstances and for the reasons given, the Panel has determined that your fitness to practise is impaired by reason of your deficient professional performance.”  (A28-29)
68.	I reject the submission that was made on behalf of Mr Pugsley that adequate reasons were not given for the Panel’s decision.  In my view, plainly they were.  This is not “an exceptional case”, as was Southall v GMC (see para 23 above).  The reasons that were given, including those in relation to Patient 45, explained in clear terms to Mr Pugsley why the Panel decided as it did in respect of each stage of the proceedings.  In my judgment the Panel was fully entitled to reach the decision it did on impairment of fitness to practise.
69.	In D4, the bundle of documents submitted on his behalf, and in the oral evidence of Mr Badger, Mr Williams and Mr Millar there is much evidence that attests to Mr Pugsley’s many qualities and his record of years of public service.  Mr Millar had this to say about him: 
“Mr Pugsley is understated, meticulous, a true team player, a true team leader.  As I have said, he has established a first-class cardiothoracic team within Wolverhampton that we as a Trust [are] extremely proud of.  His care for his patients is absolutely first class.  (B/D6/9C-D). ”
Nothing in the conditions imposed by the Panel restricts Mr Pugsley from practising in the two areas in which he wishes to continue to practise, namely thoracic surgery and the military.
70.	However in my judgment Mr Pugsley has failed to show that the Panel committed any error of law in making its decision or that it is wrong in any respect.  
Conclusion
71.	For the reasons that I have given this appeal is dismissed.