Case No: CO/4018/2010
Neutral Citation Number: [2010] EWHC 3036 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

Sitting at:
Manchester Civil Justice Centre
1 Bridge Street West
Manchester
M3 3FX

Date: Tuesday 9th November 2010

Before:

HIS HONOUR JUDGE GILBART QC, 
THE HONORARY RECORDER OF MANCHESTER 
(sitting as a deputy High Court Judge)
- - - - - - - - - - - - - - - - - - - - -

Between:

	DR AHMAD ZIA	
Appellant	
	- and -		
	
GENERAL MEDICAL COUNCIL	

Respondent	

- - - - - - - - - - - - - - - - - - - - -

(DAR Transcript of 
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No:  020 7404 1400  Fax No: 020 7404 1424
Official Shorthand Writers to the Court)

- - - - - - - - - - - - - - - - - - - - -

The Appellant appeared in person.
Mr Pievsky appeared on behalf of the Respondent.
- - - - - - - - - - - - - - - - - - - - -
Judgment
HHJ Gilbart QC:

1.	This is an appeal by Dr Ahmad Zia by virtue of section 40 of the Medical Act 1983 (as amended) against the decision of a fitness to practise panel (“FTP”) of the respondent, the General Medical Council (“GMC”).  That decision was notified on 24 February 2010.  The panel had previously announced its findings of facts on 27 November 2009.   They decided that 
(1)	The Appellant’s fitness to practice was impaired because of misconduct. The misconduct in question related to what was found to be Dr Zia’s failure to inform a prospective employer that he was under investigation by the GMC
(2)	The Appellant’s fitness to practice was impaired because of deficient professional performance when acting as a locum registrar paediatrician at the Cardiff and Vale NHS Trust.  The deficient performance was found to consist of
i.	Deficient treatment of Child A
ii.	Deficient treatment of Child B
(3)	He should be suspended from practice for 8 months.

2.	Dr Zia contends that the case brought against him at the FTP was an "abuse of process". The actual ground is in reality that the FTP had no jurisdiction to deal with his case because of a failure by the Registrar of the GMC to comply with the Medical Act 1983 and the General Medical Council (Fitness to Practise) Rules Order of Council 2004.  Secondly, Dr  Zia contends that the GMC could not properly prove its case because it called no independent expert evidence to justify its contention that he had shown that his professional performance was deficient.  Thirdly, he argues that the FTP did not consider important parts of the medical records of the patients whose treatment by him was in question and, fourthly , that the findings were in his words “wrong and are open to challenge.”
3.	The first ground taken by Dr Zia requires that I set out the way in which the allegations relating to Dr Zia reached the FTP.  It was agreed by both parties that I can deal with this as a preliminary issue, because if I found for Dr Zia it meant that the decisions of the FTP were made without jurisdiction.  
4.	The Registrar had received complaints about Dr Zia sometime between late May and early July 2008.  On 11 July 2008 the Registrar decided to refer Dr Zia for performance assessment under Schedule 1 of the 2004 Rules, which I shall set out in due course.

5.	The letter of 11 July 2008 stated:

"The assessors will be asked to send a report to the GMC on the standard of your performance.  The report will be passed on to two case examiners who will decide what further action to take. The case may be closed, you may be asked to take appropriate remedial action prior to your reassessment or if the GMC considers it necessary in the public interest you may be referred to a Fitness to Practise Panel in accordance with Rule 7(5)."

6.	And it went on:

"If you fail to submit or comply with the assessment Rule 7(6)(a)(i) provides that the allegation may be referred to a fitness to practise panel for determination"

7.	Dr Zia, acting on legal advice, declined to attend the performance assessment panel.  He had been advised by his solicitor that the decision of the Registrar was contrary to the relevant rules.  However, once Dr Zia failed to agree to submit himself, the Registrar then referred the allegations to the FTP under Rule 7(6), on the grounds that Dr Zia had failed to submit to the assessment.  At no point was the case referred to the case examiners.  The case examiners are a body to whom I shall refer in due course.

8.	The case for the GMC both at the FTP and here before me is that the decision of the Registrar not to refer it was lawful.  Dr Zia submits that it was not lawful.    The GMC submit before me that he could lawfully not refer it.  Dr Zia submits that he in law had to refer it.  This matter was taken as a preliminary point at the FTP hearing.  Although the legal assessor originally supported Dr Zia's approach, he then changed his mind after discussion with counsel for the GMC, and then supported the arguments put forward by the GMC. 

9.	I should note also that, although the GMC  had alleged that the failure to attend for the assessment panel was itself an example of deficient performance, the FTP in fact concluded that Dr Zia was not to be criticised for that failure to attend because his reasons for doing so were not unreasonable.  

10.	In order to understand the parties' contentions, one must go to the Medical Act 1983 (as amended) and the General Medical Council (Fitness to Practise) Rules Order of Council 2004. I start with the statute:
11.	Section 35C of the Act reads:
 “Functions of the Investigation Committee
(1) This section applies where an allegation is made to the General Council against— 
(a) a fully registered person;
(b) a person who is provisionally registered; or
(c) a person who is registered with limited registration,
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— 
(a) misconduct;
(b) deficient professional performance;
(c) a conviction or caution in the British Islands for a criminal offence, or a conviction elsewhere for an offence which, if committed in England and Wales, would constitute a criminal offence;
(d) adverse physical or mental health; or
(e) a determination by a body in the United Kingdom responsible under any enactment for the regulation of a health or social care profession to the effect that his fitness to practise as a member of that profession is impaired, or a determination by a regulatory body elsewhere to the same effect.
(3) ……………..
(4) The Investigation Committee shall investigate the allegation and decide whether it should be considered by a Fitness to Practise Panel. 
(5) If the Investigation Committee decide that the allegation ought to be considered by a Fitness to Practise Panel— 
(a) they shall give a direction to that effect to the Registrar;
(b) the Registrar shall refer the allegation to a Fitness to Practise Panel; and
(c) the Registrar shall serve a notification of the Committee’s decision on the person who is the subject of the allegation and the person making the allegation (if any).
(6) If the Investigation Committee decide that the allegation ought not to be considered by a Fitness to Practise Panel, they may give a warning to the person who is the subject of the allegation regarding his future conduct or performance. 
(7) If the Investigation Committee decide that the allegation ought not to be considered by a Fitness to Practise Panel, but that no warning should be given under subsection (6) above— 
(a) they shall give a direction to that effect to the Registrar; and
(b) the Registrar shall serve a notification of the Committee’s decision on the person who is the subject of the allegation and the person making the allegation (if any).
(8) If the Investigation Committee are of the opinion that an Interim Orders Panel or a Fitness to Practise Panel should consider making an order for interim suspension or interim conditional registration under section 41A below in relation to the person who is the subject of the allegation— 
(a) they shall give a direction to that effect to the Registrar;
(b) the Registrar shall refer the matter to an Interim Orders Panel or a Fitness to Practise Panel for the Panel to decide whether to make such an order; and
(c) the Registrar shall serve notification of the decision on the person who is the subject of the allegation and the person making the allegation (if any).
(9) ………..

12.	Section 35CC reads
“Provisions supplementary to section 35
 (1) Rules under paragraph 1 of Schedule 4 to this Act may make provision for—
(a)the Registrar; or
(b)any other officer of the General Council,
to exercise the functions of the Investigation Committee under section 35C above, whether generally or in relation to such classes of case as may be specified in the rules.
(2) Where, by virtue of subsection (1) above, rules provide for the Registrar to exercise the functions of the Investigation Committee under subsections (5), (7) and (8) of section 35C above, those subsections shall apply in relation to him as if paragraph (a) in each of them were omitted.
(3) Section 35C above also applies in a case where—
(a)it comes to the attention of the General Council that a person’s fitness to practise is called into question by one or more of the matters mentioned in subsection (2) of that section, but
(b)no allegation to that effect has been made to the Council against that person,
and in such a case section 35C shall apply as if an allegation to that effect had been made to the Council against that person.]”

13.	One then turns to the General Medical Council (Fitness to Practise) Rules Order of Council 2004.  I intend to set them out in some detail, not least because some of the submissions set before me by the respondent misquoted them. 
14.	I start with Rule 3.  It permits the Registrar, inter alia, to appoint a panel of medical and lay performance assessors for the purposes of carrying out performance assessments in accordance with schedule 1.  Part 2 of the Rules is entitled “Investigation of Allegations”.  It contains Rules 4 to 12 and refers also to Schedules 1 and 2.  Part 3 of the Rules deals with action following referral, ie to an FTP.  Much turns here on the interrelationship of the Rules within part 2
15.	I start with Rule 3. It permits the Registrar, inter alia,  to appoint a panel of medical and lay performance assessors for the purposes of carrying out performance assessments in accordance with Schedule 1.

16.	Part 2 of the Rules is entitled “ Investigation of Allegations.” It contains Rules 4 to12, and refers also to Schedules 1 and 2. Part 3 deals with “ Action following Referral” – i.e. to an FTP. Much turns here on the interrelationship of the Rules within Part 2.  I set out Part 2 of the Rules and Schedule 1 insofar as they are relevant to the issues in question.

“PART 2

Investigation of allegations

Initial consideration and referral of allegations
4. — (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.
(3) Where—
(a)the Registrar considers that an allegation does not fall within section 35C(2) of the Act; or
(b)in the case of an allegation falling within paragraph (5), the Registrar does not consider it to be in the public interest for the allegation to proceed,
he shall notify the practitioner and the maker of the allegation (if any) accordingly.
(4) The Registrar may, before deciding whether to refer an allegation, carry out any investigations as in his opinion are appropriate to the consideration of—
(a)whether or not the allegation falls within section 35C(2) of the Act; or
(b)the practitioner’s fitness to practise.
(5) No allegation shall proceed further if, at the time it is first made or first comes to the attention of the General Council, more than five years have elapsed since the most recent events giving rise to the allegation, unless the Registrar considers that it is in the public interest, in the exceptional circumstances of the case, for it to proceed.

Functions of the Registrar in relation to cautions, convictions and determinations
5. (1) Subject to rule 4(5), the Registrar shall refer an allegation falling within section 35C(2)(c) of the Act relating to a conviction resulting in the imposition of a custodial sentence, whether immediate or suspended, directly to a FTP Panel.
(2) Subject to rule 4(5), the Registrar shall refer any other allegation falling within section 35C(2)(c) or (e) of the Act directly to a FTP Panel, unless he is of the opinion that it ought to be referred to a medical and a lay Case Examiner for consideration under rule 8.

Referral to Interim Orders Panel
6. If, at any stage, the Registrar is of the opinion that an Interim Orders Panel should consider making an interim order in relation to a practitioner, he shall refer the allegation to an Interim Orders Panel accordingly.

Investigation of allegations
7. — (1) As soon as is reasonably practicable after referral of an allegation for consideration under rule 8, the Registrar shall write to the practitioner—
(a)informing him of the allegation and stating the matters which appear to raise a question as to whether his fitness to practise is impaired;
(b)providing him with copies of any documents received by the General Council in support of the allegation;
(c)inviting him to respond to the allegation with written representations within the period of 28 days from the date of the letter; and
(d)informing him that representations received from him will be disclosed, where appropriate, to the maker of the allegation (if any) for comment.
(2) The Registrar shall carry out any investigations, whether or not any have been carried out under rule 4(4), as in his opinion are appropriate to the consideration of the allegation under rule 8.
(3) The Registrar may direct that an assessment of the practitioner’s performance or health be carried out in accordance with Schedule 1 or 2.
(4) Where an assessment has been carried out in accordance with Schedule 1 or 2, the Registrar shall send a copy of the assessment report to the practitioner.
(5) Where an assessment has been carried out in accordance with Schedule 1, the Registrar shall send a copy of the assessment report to any person by whom the practitioner is employed to provide medical services or with whom he has an arrangement to do so.
(6) Where the Registrar receives information that—
(a)the practitioner has failed to submit to, or comply with, an assessment under Schedule 1 or 2; or
(b)having submitted to an assessment under Schedule 1, the practitioner has failed to comply with reasonable requirements imposed by the Assessment Team;
the Registrar may—
(i)refer the allegation for determination by a FTP Panel, and
(ii)in a case falling within sub-paragraph (b), refer the practitioner to a FTP Panel for the purposes of making a direction under paragraph 5A(3) of Schedule 4 to the Act.

Consideration by Case Examiners
8. — (1) An allegation referred by the Registrar under rule 4(2) or 5(2) shall be considered by the Case Examiners.
(2) Upon consideration of an allegation, the Case Examiners may unanimously decide—
(a)that the allegation should not proceed further;
(b)to issue a warning to the practitioner in accordance with rule 11(2);
(c)to refer the allegation to the Committee under rule 11(3) for determination under rule 11(6); or
(d)to refer the allegation for determination by a FTP Panel.
(3) The Case Examiners may unanimously decide to recommend that the practitioner be invited to comply with undertakings in accordance with rule 10(2) and, where they do so and the practitioner confirms he is prepared to comply with such undertakings in accordance with rule 10(3), they shall make no decision under paragraph (2) accordingly.
(4) As soon as reasonably practicable, the Case Examiners shall inform the Registrar of their decision, together with the reasons for that decision, and the Registrar shall notify the practitioner and the maker of the allegation (if any), in writing, accordingly.
(5) If the Case Examiners fail to agree as to the disposal of an allegation under paragraph (2), or whether to recommend that the practitioner be invited to comply with undertakings under paragraph (3), they shall notify the Registrar accordingly, and the Registrar shall refer the allegation for consideration by the Committee under rule 9.
(6) If, at any stage, one of the Case Examiners is of the opinion that an Interim Orders Panel should consider making an interim order in relation to a practitioner, he shall direct the Registrar accordingly.

Consideration by the Committee
9. Upon consideration of an allegation referred under rule 8(5), the Committee may—
(a)determine that the allegation should not proceed further;
(b)dispose of the allegation by issuing a warning to the practitioner without an oral hearing in accordance with rules 11(2) to (4);
(c)determine that an oral hearing should be held for determination under rule 11(6);
(d)refer the allegation for determination by a FTP Panel; or
(e)where the Case Examiners have failed to agree whether to recommend that the practitioner be invited to comply with undertakings in accordance with rule 10(2), determine that the practitioner be invited to comply with such undertakings as the Committee think fit and direct the Case Examiners to make no decision under rule 8(2) accordingly.

Undertakings
10. (1) Where—
(a)after an assessment has been carried out in accordance with Schedule 1 or 2; and
(b)before the relevant allegation has been determined by the Case Examiners under rule 8 or referred to the Committee or a FTP Panel,
the Registrar considers it appropriate to do so, he may refer the assessment report to the Case Examiners for consideration under this rule.
(2) If after considering the assessment report it appears to the Case Examiners that the practitioner—
(a)is not fit to practise;
(b)is not fit to practise except on a limited basis or under supervision, or both; or
(c)suffers from a continuing or episodic physical or mental condition which, although in remission at the time of the assessment, may be expected to cause a recurrence of impairment of the practitioner’s fitness to practise,
they may recommend that the practitioner be invited to comply with such undertakings as they think fit (including any limitations on his practice) and shall inform the Registrar who shall write to the practitioner accordingly, inviting him to state within the period of 28 days from the date of the letter (or such further period as the Registrar may allow) whether he is prepared to comply with such undertakings.
(3) …….
(4) ………………..
(5) ………………
(6)………………..
(7) ……………….
(8) ……………………..

Warnings
11. — (1) If it appears to one or both of the Case Examiners that an allegation is one with respect to which he or they may wish to give a warning, he or they shall inform the Registrar, and the Registrar shall write to the practitioner to inform him that he is entitled to make written representations within the period of 28 days from the date of the letter.
(2) ………………………
(3) After considering any representations made by the practitioner, where—
(a)the practitioner has requested that the allegation be referred for an oral hearing before the Committee; or
(b)the Case Examiners otherwise consider it appropriate to do so,
the Case Examiners shall refer the allegation to the Committee for an oral hearing in accordance with this rule.
(4) ………………….
(5) Where an allegation has been referred to the Committee for an oral hearing under paragraph (3) or (4), the Registrar shall give notice to the practitioner—
(a)particularising the allegation against the practitioner and the facts upon which it is based;
(b)specifying the date, time and venue of the hearing;
(c)informing him of his right to attend the hearing and to be represented at a hearing in accordance with rule 33;
(d)informing him of the power of the Committee to proceed in his absence under rule 31; and
(e)informing him of the Committee’s powers of disposal as set out in paragraph (6).
(6) The Committee shall consider any allegation referred to it under paragraph (3) or (4), and shall—
(a)determine that the matter should not proceed further;
(b)dispose of the allegation by issuing a warning; or
(c)where new information adduced into evidence at the hearing indicates that to do so would be appropriate, refer the allegation for determination by a FTP Panel.
(7) Where an allegation has been referred for an oral hearing under paragraph (3) or (4), the order of proceedings before the Committee shall be as follows—
(a)the Presenting Officer shall outline the allegation and the facts upon which it is based and, where the Committee considers such evidence is desirable to enable it to discharge its functions under this rule, may adduce any relevant oral or documentary evidence;
(b)the practitioner may respond to the allegation and, where the Committee considers such evidence is desirable to enable it to discharge its functions under this rule, may adduce any relevant oral or documentary evidence;
(c)the parties may make such further submissions as the Committee may allow;
(d)before making its decision, the Committee may adjourn for further investigations to be carried out, including an assessment of the practitioner’s performance or health under Schedule 1 or 2; and
(e)the Committee shall announce its decision, and shall give its reasons for that decision.
(8) In making its decision, the Committee shall, where appropriate, take into account the practitioner’s previous fitness to practise history with the General Council or any other regulatory body.
(9) The Registrar shall serve written notification of the Committee’s decision upon the practitioner as soon as practicable.
(10) The notice of decision shall—
(a)where the Committee decides that the matter should be referred to a FTP Panel, particularise the allegation against the practitioner that is to be referred; and
(b)where the Committee decides that the matter should be disposed of by issuing a warning, particularise the terms of the warning issued to the practitioner.

Review of decisions
12………………….

Relevant date for the purpose of sections 35A and 35B of the Act
13. …………………………

SCHEDULE 1

Rules 2, 3(1)(a), 7(3) to (6), 10(1),10(5)(b), 11(7)(d), 13(e), 17(4)(b),17(8), 19(b), 23(1)(b) and 24(2)(g)
PERFORMANCE ASSESSMENTS

Interpretation
1. In this Schedule “assessment” means an assessment of the standard of the practitioner’s professional performance

Assessment Teams
2 (1) An assessment shall be carried out by an Assessment Team.
(2) The Registrar shall select from the panel of performance assessors appointed under rule 3, an Assessment Team comprising—
(a)a team leader, who shall be a medical performance assessor;
(b)one or more other medical performance assessors; and
(c)one or more lay performance assessors.
(3) A person shall not be selected as a member of an Assessment Team in any case where he has been selected to act as a specialist adviser at a previous hearing of the case.
(4) In selecting a medical performance assessor as a member of an Assessment Team, the Registrar shall have regard to the specialty to which the allegation relates.

Proceedings and procedures of Assessment Teams
3. — (1) Subject to sub-paragraphs (2) to (4), and having regard to the nature of the practitioner’s employment, the Assessment Team shall adopt such procedures as appear to it to be necessary in order to assess the standard of the practitioner’s professional performance.
(2) The Assessment Team may seek advice or information from any person who might, in the opinion of the Assessment Team, assist them in carrying out the assessment.
(3) The Assessment Team shall disclose to the practitioner any written information or opinion received by the Assessment Team which in their opinion may influence their assessment of the standard of his professional performance, and shall afford him a reasonable opportunity to respond.
(4) The Assessment Team shall produce a report on the standard of the practitioner’s professional performance which shall express—
(a)an opinion as to whether the practitioner is fit to practise either generally or on a limited basis; and
(b)any recommendations as to the management of the case.
17.	In this case the Registrar decided to direct a Schedule 1 assessment under Rule 7(3) and did not refer the matter to the case examiners under Rule 4(2) and Rule 8.  Once Dr Zia declined to submit himself to the panel for the purposes of the Schedule 1 assessment, his case was referred by the Registrar to the FTP under Rule 7(6).  Dr Zia's contention is that any allegation for which Rule 4 applies must be referred to the case examiners, which process gives extra protection to a doctor about whom allegations have been made.  He contends that the power under Rule 7(3) is not independent and can only be exercised if a referral has been made.  The GMC's contention is that once an allegation has been made the Registrar has a general power under Rule 7(3) to direct a Schedule 1 assessment and is entitled to decide not to make a reference.  That case has been argued bravely by Mr Pievsky, who did not appear before the FTP and is required to put forward what at times, it was quite apparent, was a difficult case.

18.	In my judgment the Rules set out are a readily comprehensible code for dealing with allegations. It is as follows.  First, when an allegation is received the Registrar must consider it: see Rule 4(1).  Unless it is a case involving criminal convictions he must then decide if the allegation falls outside the scope of Section 35C(2), is out of time, under Rule 4(5) and is not an allegation where the public interest justifies it being proceeded with or is vexatious: Rule 4(3). Third, otherwise he must refer an allegation to the case examiners: see Rule 4(2).  He has no discretion on whether or not he may do so.  However, before deciding whether to refer it he may carry out any investigations which in his opinion are appropriate to considering inter alia the practitioner's fitness to practise: see Rule 4(4).  In submissions Mr Pievsky argued that the Registrar could decide whether to make a reference.  I do not accept that.  His role under Rule 4(4) is more limited than that.

19.	Fourth, once the allegation is referred to the case examiners the Registrar must inform the doctor in question of the matters set out in Rule 7(1) so that he or she has the opportunity to make representations: see Rule 7(1)(d).  Fifth, the case examiners, who are officers of the general council (see Rule 20) are under a duty to consider the allegations referred by the Registrar: see Rule 8(1). They have the power to bring the investigation of the allegation to an end (see Rule 8(2)(a); warn him under Rule 11 (see Rule 8(2)(b)); refer the matter to the investigation committee if the doctor wants to argue against the warning orally (see Rule 8(2)(c); or refer the allegation to the FTP.  If the case examiners cannot agree as to the disposal of an allegation they must inform the Registrar, who must then put the allegation before the investigation committee: Rule 8(5).  Lastly the investigation committee has the power to determine that the allegation should not proceed further or to warn the doctor or to hold an oral hearing as to a warning if he requires one, or refer the allegation to an FTP or invite compliance with undertakings:  see Rule 9. 

20.	It is noteworthy in my judgment that the process is designed to protect the proper interests of a person against whom allegations have been made.  He is given the right to have his case considered at at least two stages.  First, an initial consideration by the Registrar of whether the allegation merits investigation (see Rule 4(4)) and, second, an investigation by case examiners.  If they are in agreement, they have powers not given to the Registrar.  Such powers, if they are in disagreement, are given to the investigation committee.  Those powers given to both bodies are, first, the power to bring the proceedings to an end.  Thus the investigation of an allegation which was found to have fallen within section 35C(2) but which could not be proved could not be brought to an end by the Registrar under Rule 4, but can be brought to an end by the case examiners under Rule 8.  That of course provides protection to the persons making the allegation as well as to the doctor.  Second, the power to refer allegations to the FTP, and the third power they have that the Registrar does not is the power to issue a warning or invite undertakings.  

21.	That power of investigation has the important procedural safeguard that the doctor in question has the right to be informed of the allegations and to make representations: see Rule 7(1).  There is then the additional protection that if the case examiners disagree the investigation committee must then consider the allegations.  It has the same powers not given to the Registrar as the case examiners would have had, had they been unanimous.  In my judgment the Rules make it plain that the Registrar's role once he has determined that the allegation has passed its initial screening is to facilitate the process of investigation by others.  

22.	In that context I turn to my conclusions on the respective arguments on the meaning of Rule 7(2) and 3. In my judgment one must adopt a purposive construction to what is plainly intended to be a code of investigation and one which is designed to be protective of the interests of a person who is the subject of an allegation as well as of those who have made the allegation.  In my judgment the purposes of both Rule 7(2) and 3 are to inform the consideration under Rule 8 by the case examiners or the investigating committee.  I accept of course that Rule 7(3) makes no explicit reference to the investigations under Rule 8 but it appears in a rule entitled “Investigation of Allegations”, which is directed to the way in which material is put before the case examiners.  The results of the assessment under Schedule 1 go directly to some of the very issues which the case examiners are to consider, namely the standard of a doctor's professional performance (see Schedule 1 paragraph 3(1)) and an opinion on whether he is fit to practice either generally or on a more limited basis (see Schedule 1 paragraph 3(4)) is plainly relevant in my judgment to the decision of whether to warn or to obtain undertakings.  Were the respondent, the GMC, to be correct, then the Rules would have given to the Registrar the power to get the fitness of the doctor to be assessed outwith the consideration by the case examiners or the investigation committee. It follows that if the respondent, the GMC, is correct, and this was bluntly accepted by Mr Pievsky, a referral could be made to the FTP without any reference being made to the case examiners and therefore a loss of the safeguards built into the Rules. That is of course precisely what happened here.

23.	Further Rule 7(1) as noted above requires that after referral to the case examiners the Registrar must give notice to the doctor of the matters which, in its words, “appear to raise a question as to whether his fitness to practise is impaired".

24.	I note the use of the present tense, showing that it relates to all matters relevant to that issue including of course exactly the question relevant to the Schedule 1 assessment in paragraph 4(4).  If the respondent GMC is correct that Rule 7(3) stands apart from the rest of Rule 7, the Rules would have the effect of permitting the doctor to respond to the case examiners on all matters except the assessment team's conclusions under Schedule 1, which if the GMC is correct need not go before the case examiners or investigating committee.

25.	In my judgment the purpose of Rule 7(3) is to enable the Registrar to get as much evidence as he can for the purposes of consideration of the allegations. Rule 7(6) prevents a doctor under investigation preventing proper investigation by an unreasonable refusal to submit himself for assessment.  Nothing is lost from that objective by insisting that the other safeguards are still observed. However, use of that procedure instead of the consideration by the case examiners and investigating committee does deprive the doctor of important safeguards and is in obvious breach of Rule 4(2).  

26.	This is not an academic distinction in my judgment.  Suppose that patient X alleged that Dr Y had been unprofessional in his treatment of a suspected breast cancer, by 
(i) omitting to follow some investigatory procedure such as a CT or MRI scan or variation thereof with which he was unfamiliar because of a failure to keep up to date with current medical practice 
(ii) omitting to act on warnings from other members of the medical or nursing staff about the patient's condition; 
(iii) indecently assaulting her by conducting an unnecessary examination of her private parts.  
The decision whether to warn, obtain undertakings or suspend will depend to a significant degree on which of those allegations are made out.  If there was concern that the doctor in question was not au fait with modern clinical practice on scans or investigations, then the results of the schedule 1 assessment would be of great importance on the first allegation.  They could well lead to the requirement for undertakings on continuing education and training.  They could also affect the second allegation where questions of responsiveness to the views of others could be an issue.  But the views of the case examiners would be very important also on the second and third issues, where they could in an appropriate case conclude that the evidence advanced in support of one or other allegation was insufficient to show that there were warnings or any indecency or where material which had come to light cast doubt upon the allegation or that the doctor's response to the allegation had answered any concerns.  So if the examiners rejected the second or third allegations, but accepted the first, then the question of referral to the FTP as opposed to warnings or undertakings, is likely to be  (or at the very least could well be) answered differently.  It is my judgment that the case examiners or investigating committee can take a rounded view, looking at all matters, and in my judgment that is what the Rules provide for.  That is an important safeguard for the doctor against whom allegations have been made.  I am comforted in my rejection of the GMC argument by the fact that the letter of 11 July 2008 stated in terms that the schedule 1 report would be "passed to the case examiners". 

27.	In this case Dr Zia's refusal to submit to the assessment was in the event accepted by the FTP.  It follows that the referral to the FTP by the Registrar was in the event justified by an assessment, the request for which was refused by Dr Zia -  reasonably in the view of the FTP. 
 
28.	None of the above affects the force of Rule 7(6).  If a doctor refuses to undergo assessment and thereby affects the ability of the case examiners to reach an informed conclusion, then the matter can be referred to the FTP by the Registrar, although he will of course wish to judge whether the refusal merits referral in the public interest.  As noted above, there may be good reasons from the refusal or the efficient performance of his duties by the doctor might be achieved by means of a warning or undertaking.

29.	On the other hand Mr Pievsky accepts that if his contentions are correct, then Rule 4(2) must be read - despite its plain and obvious words - as excluding a duty to refer if there had been a refusal to undergo an assessment.  I reject that interpretation.  I am comforted that mine is the correct interpretation by the GMC's own publication on its own website of a document entitled “Investigating Concerns”, which was put before me by Dr Zia without objection by Mr Pievsky.  In the version dated 11 March 2010 it reads as follows : 

"Starting our investigation – permissions and disclosures. 

Where the concerns potentially raise questions about the doctor's fitness to practise, we will start our investigation.  Whenever we investigate concerns further, we will disclose the complaint to the doctor and his/her employer or sponsoring body.  This ensures that we have a complete overview of the doctor's practice.  This exchange also makes our information available to those responsible for local clinical governance. 

When we begin to investigate a complaint, we will normally need to obtain further information from the complainant.  We will also need their consent to disclose the complaint to the doctor.  

We will disclose the complaint to the doctor and ask him/her to provide details of his/her employers or sponsoring body.  The doctor will have an opportunity to comment on the complaint. 

What happens during an investigation 
Our investigation will depend very much on the nature of the concerns raised with us. Our investigation staff will decide on the most effective forms of investigation of the case.  An investigation may include: 
obtaining further documentary evidence from employers, the complainant or other parties; obtaining witness statements; 
obtaining expert reports on clinical matters, etc; 
an assessment of the doctor's performance;
an assessment of the doctor's health.  

At the end of the investigation – Case Examiners
At the end of the investigation by the GMC of allegations against a doctor the case will be considered by two senior GMC staff known as case examiners (one medical and one non-medical).  They can:
- conclude the case with no further action;
- issue a warning; 
-refer the case to an FTP panel or agree    
   undertakings.

No case can be concluded or referred to an FTP panel without the agreement of both a medical and non-medical case examiner.  If they fail to agree, the matter will be considered by the Investigation Committee, a statutory committee of the GMC. 

We will inform both the doctor and complainant of the case examiners’ decision and their reasons."

30.	Patently there is an error in that because Rule 7(6) allows for referral without the agreement of the case examiners.  But the important point is of course that this account holds out that every case will be considered by the case examiners, in other words exactly as Rule 4(2) says and exactly as Dr Zia says that Rule 7 should be interpreted.  I regret to say that I find it a matter of astonishment that the GMC can be running the case they are before me and ran at the fitness to practise panel when that is their publicly stated position on their website. I think it behoves the GMC, especially as they are in receipt of public funds, to think long and hard about the position they have adopted.

31.	Mr Pievsky accepted candidly that his submissions and what it says in that publication are in stark conflict.

32.	I have not approached this on the basis that that created a legitimate expectation.  That has not been argued.  I cite it because it does demonstrate the inconsistencies demonstrated by the GMC in this matter and generally.  It follows from the above discussion that I find that the procedure adopted by the registrar was in breach of the rules.  I note that that was originally the conclusion of the legal assessor to the FTP, who was then unfortunately persuaded to change his mind.  

33.	I come now to the question of the effect of the breach.  At the FTP the submissions made concentrated on cases from the criminal jurisdiction on abuse of process. I do not consider that cases drawn from the criminal sphere on abuse of process are apt for translation into the issues at play here. More important is whether the breach of the rule affects the jurisdiction of the FTP to act under section 35C and, if so, whether it renders any decisions void.  

34.	The power to make rules is given by Schedule 4 of the Medical Act 1983 :

“Subject to the provisions of this paragraph, the General Council shall make rules for the Investigation Committee, Interim Orders Panels and Fitness to Practise Panels with respect to -
(a) the reference of cases to the Investigation Committee, an Interim Orders Panel or a Fitness to Practise Panel; and 
(b) the procedure to be followed and rules of evidence to be observed in proceedings before that Committee or such a Panel.” 

35.	The rules thus made must be approved by the Privy Council: see paragraph 1(9).  In my judgment the rules set important safeguards for the doctor under investigation.  A breach deprives him of an important safeguard within the investigatory process, which includes the ability to deal with matters without having to appear before the FTP.  I therefore regard the rules, and Rule 4(2) in particular, as mandatory in terms of defining the procedure to be followed.  At the FTP the panel accepted what I have found to be an erroneous interpretation of the Rules.  It follows that it did not consider whether, notwithstanding any breach, nevertheless Dr Zia's case had not been prejudiced. In my judgment it is strongly arguable that his case was prejudiced.  He found himself before the FTP even though his refusal to submit to assessment was found not to be unreasonable and without having had any earlier formal opportunity to make representations about the allegations made. 
36.	The FTP was itself deprived of that which the rules specifically envisage, namely the decision and reasons therefor of the case examiners or investigating committee to refer the case to the FTP and whether it would have referred the allegations.  After all, if a Rule 7(6) reference had been made that the case examiners had determined that the allegations actually made were unsubstantiated or could be dealt with by a warning or an undertaking, then that would put a quite different complexion on the nature of the case before the FTP.  It is perhaps significant that at the end of the FTP hearing one set of allegations was dismissed (those relating to child B)  and some others relating to children A and C were also  dismissed.  A proper sifting of the case by the case examiners, as expected by the Rules, could have led to the rejection of those unproven allegations much earlier.  I therefore conclude that the failure to comply with the Rules meant that the reference to the FTP was made unlawfully and that therefore it reached its decision without having jurisdiction to do so.  

37.	Lastly on this point I turn to Mr Pievsky's argument that if Dr Zia has a complaint about the lack of reference he should have taken judicial review proceedings in 2008.  He seeks support in two first instance decisions which go unreported, at least as far as I am aware  Neither is even to be found on BAILII.  

38.	The two decisions are The Queen ex parte Kashyap v GMC  [2009] EWHC 2873 ( Mitting J)  at paragraph 11 and  Dzikowski v GMC [2006] EWHC 2468 (Hodge J) at paragraph 22.

39.	I start with the law of appeals under the Medical Act 1983.  By Section 40 an appeal may be made in the case of the decision of a fitness to practise panel under Section 35D for suspension.  In my judgment a breach of the rules which led to a want of jurisdiction in the FTP must affect the validity of its decision and therefore whether the decision to suspend was lawfully made.  Were it otherwise, it would mean that in this case Dr Zia would have been compelled to bring two sets of proceedings, the one an appeal on the other arguments and the other an application for judicial review on the jurisdiction point.  

40.	That seems to me to create an undesirable potential for duplication of proceedings.  There should be one set of proceedings able to deal with all relevant issues.   Mr Pievsky was driven to argue that, given the absence of a challenge in 2008, the FTP itself had no jurisdiction to determine whether the proceedings before it were within its jurisdiction or, to use the language it adopted, an abuse of process.  That leads to the conclusion that a decision that it did so is outwith the jurisdiction of an appeal or a judicial review.  I find the concept of a decision made by the body that it had jurisdiction being unchallengeable by way of appeal or judicial review completely inconsistent with the concept of the control of tribunals by the higher courts that one is used to in this country.

41.	That argument by Mr Pievsky, to which he was driven by the logic of the GMC's position, shows in my judgment how illogical the GMC position is.  I do not regard the decisions cited by Mr Pievsky as binding on this point.  Of course being unreported and at first instance they are not binding anyway, but I do not find them  of  persuasive authority either.

42.	In the Dzikowski case, Hodge J said this at paragraph 22:

"The first ground, A, was that procedural irregularities occurred in the proceedings prior to the decision of the Fitness to Practise Panel.  These are said to have included the decision of a screener, made in March 2004, to refer the matter to the Interim Orders Committee.  They are also said to include the hearing before the Interim Orders Committee and the decision of the PPC on 6th December 2004 to refer the matter to the Professional Conduct Committee, which has now become the Fitness to Practise Panel.  I do not need to go into any examination of these important internal procedures of the General Medical Council.  Suffice it to say that, before serious issues, such as are before this court, can be considered by the Fitness to Practise Panel, a good deal of preliminary work has to be undertaken.  I do not regard the appellant as having any right or ability to challenge all these preliminary proceedings.  The only way that could properly have been done, and that with great difficulty, is by way of an application for judicial review.  No such application was made.  It would, in any event, by now be very much out of time.”

With respect to Hodge J that does not address the terms of section 40 of the Medical Act 1983.  

43.	I turn now to the decision of Mitting J in the Kashyap case. At paragraph 10 Mitting J points out that the claimant's case there was that the Registrar should not have referred the case of the fitness to practise panel and he went on:

"11. Whether or not there was merit in that contention, if it was to be raised as a challenge in judicial review proceedings it should have been raised within three months of its occurrence or, at the very latest, within three months of the date on which the decision was confirmed, albeit on different grounds, on 16th October 2007.”

44.	He went on to say:

"Mr Hendy submitted to the Panel that the referral was improper and unlawful and not in accordance with Rule 8(1)(d) of the 2004 Rules. The Panel decided, correctly, that it did not have jurisdiction to entertain such a challenge. Such a challenge could only be made by a claim for judicial review. If it had been and if it had succeeded, a 28Âday hearing with more to come if this challenge does not succeed would have been avoided. The claimant had a choice of remedy: to seek to apply for judicial review or to contest the allegations on their merits. He chose the latter. He must abide by his choice. It is far too late now to bring a claim for judicial review on this ground.” 

Again, with respect to Mitting J, he does not address the terms of section 40, but of course that case is different because there the fitness to practise panel concluded they had no jurisdiction to hear the argument, which is not the case here.  This panel decided they did, heard it and rejected it. 

45.	In my judgment neither judge in those authorities addressed the issue in play here, namely the ability of the Registrar to bypass the investigation required under the Rules.  The fact is that at the FTP the GMC argued this point on the merits.  If Mr Pievsky is right, and he candidly accepted this, there was no power in the FTP even to address the issue.  In my judgment neither decision is binding on me, and I decline to follow them as persuasive authority.

46.	My powers under the Medical Act 1983 under Section 40(7) are as follows.  I may dismiss the appeal, allow the appeal and quash the direction or variation appealed against, substitute for the direction or variation appealed against any other direction or variation which could have been given or made by a fitness to practise panel or remit the case to the Registrar for him to refer it to a fitness to practise panel to dispose of the case in accordance with directions of the court.  

47.	I am conscious of the fact that if I allow the appeal the effect of my decision is that findings of fact and consequent decisions made after 15 days of hearing must be set aside.  That is the consequence of the approach adopted by the GMC here despite what it had said in its original letter and its publicly stated position.  If I was satisfied that the breach of Rule 4(2) would have made no difference to the fairness of the proceedings, I would have considered dismissing the appeal, but I cannot be sure of that.  Dr Zia ended up defending himself against a series of allegations rather than facing those which had survived the scrutiny of the case examiners.  The FTP was deprived of the benefit of the reasoning of the case examiners.  I also consider that the breach is so serious as to undermine essential procedural safeguards and, in the exercise of my discretion under section 40(7), I have considered allowing the appeal on this ground but I want to hear submissions first on what orders I should make given the terms of my judgment.

JUDGE GILBART: Mr Pievsky? I will let you start
MR PIEVSKY : I am grateful my Lord. The realistic options in light of your Lordship's judgment are as I understand it, subsection 7(b) or sub section 7(d).  If I am wrong ...
JUDGE GILBART :  Just say that again would you.  7 ? ...
MR PIEVSKY : My Lord my understanding is that you’re considering either 7(b) or 7(d)
JUDGE GILBART :  (b) or (d) yes. 
MR PIEVSKY : In my submission (d) would be appropriate because the logic of your Lordship's judgment is that the Registrar ...
JUDGE GILBART :  (d) concerns remitting to him for him to refer it to a fitness to practise panel, which is again to undermine Rule 4(2).  Isn't that the problem?
MR PIEVSKY : I thought you recognised explicitly in the judgment he can do so albeit it has to go to the case examiners for their views.  I thought your Lordship said that that was the logic of 7(6).
JUDGE GILBART :  Yes I did, but (d) does not address the reference to the case examiners.  It only addresses remitting back to the fitness to practise panel.
MR PIEVSKY : Remit the case to the Registrar for him to dispose of the case in accordance with the directions of the court, so you could direct that the case needs to be considered by the case examiners to rectify the defect that you found to have existed.   My Lord that appears to us to be a more attractive outcome than (b) where the risk is that if you simply allow the appeal and quash the directions or suspension then, as you have already said, my Lord the findings of fact which are that the doctor did commit misconduct and his performance was deficient and that he should be suspended are rendered null and void and it means that he is able to practise.  It is not easy to see how the GMC could deal with those allegations properly.
JUDGE GILBART :  I just want to test that if I may, Mr Pievsky.  Surely the effect of the appeal would be to put matters back as they were in the summer of 2008 and there would be the reference to the case examiners
MR PIEVSKY : My Lord, I’m genuinely not sure about that but the concern of those instructed is that if you quash the direction then we are at the end of the process and the allegations have ....
JUDGE GILBART :  So you say that under (d) I could give directions to the Registrar.  He is to refer it to the case examiners.  The problem I have with that is the Rules specifically allow for the case examiners to decide that no further action should be taken.  If I operate under (d) it has to involve a reference to the fitness to practise panel.  Are you saying that there is a way of drafting this so that it can allow for the procedure whereby the case examiners would approach their case under Rule 8?
MR PIEVSKY : Can I just clarify ...
JUDGE GILBART :  Do you understand what I mean?
MR PIEVSKY : I think so my Lord.  The logic of your Lordship's judgment is not ... are you saying that the case should have gone to the case examiners for consideration ....
JUDGE GILBART :  Yes.
MR PIEVSKY : ... as to whether it should go any further notwithstanding what 7(6) says.
JUDGE GILBART :  Yes.  That ... not that allegations should go no further but the allegations made regarding child A, B and C should go no further.
MR PIEVSKY : Well of course the allegations, as I said in my skeleton argument, is the allegation of a person's fitness to practise has been impaired. It's a unitary question.
JUDGE GILBART :  Any allegation has to be referred to the case examiners.  I am afraid, Mr Pievsky, the problem is the GMC has put itself in this position by bypassing the procedure which the Privy Council approved.  That is why you are in this difficulty.
MR PIEVSKY : My Lord can I briefly take instructions ...
JUDGE GILBART :  Can we, can we look at C? No, we will look at B. If I quash the direction, that will mean that the allegation has not been determined, won't it?
MR PIEVSKY : My Lord it is very helpful that you indicate that ...
JUDGE GILBART :  Well it must do.
MR PIEVSKY : If that is the intention of your Lordship then ...
JUDGE GILBART :  It must do, mustn’t it? And if the allegation has not been determined then the procedure must take its course.  I have not allowed the appeal on the basis that the conclusions of the fitness to practise panel were unjustified factually, I have said nothing about that, but in the real world you are not going to proceed further with B and you are not going to proceed further with the allegations that were not made out at the FTP, especially because many of them turned out on examination to be based upon a misunderstanding of what had happened.
MR PIEVSKY : Yes after hearing from the witnesses, yes.
JUDGE GILBART :  Yes.
MR PIEVSKY : As long as it is not to be suggested that the GMC cannot deal with the substance of the matter after your Lordship's judgment, then I am very grateful for that indication.
JUDGE GILBART :  Well, we will hear what Dr Zia says as well.  Dr Zia what do you say?
DR ZIA :  Yes thank you.  (inaudible) put forward as an abuse of process and all the other points (inaudible) the fact findings of the fitness to practise panel.  The fitness to practise panel took a decision, which is that the fact findings that the fitness to practise panel took are invalid because they are based on ...
JUDGE GILBART :  I am sorry, don't misunderstand me. The effect of my judgment is that the fitness to practise decisions are done away with.  Now what I have just been discussing with Mr Pievsky is whether that means that the allegations are done away with or whether that means that we go back to the situation in 2008 and the allegations still exist and they have to be pursued properly.
DR ZIA :  I think I have put that argument in my skeleton argument in terms of the fact-finding from the fitness to practise panel that we have not considered yet and it's a very substantial inference that I put forward on my skeleton argument that I think the GMC should have considered that fact-finding as proof against the evidence which was presented to the fitness to practise panel especially when (inaudible).
JUDGE GILBART :  Well if that is what you say, there are two ways forward aren’t there?  One is that I indicate that the appeal is going to be allowed as I have indicated and I then hear submissions, because it relates to the orders I should make.  Or the other is that I allow the appeal, quash the decision of the fitness to practise panel and then you are at liberty to make any submissions you wish within the proceedings before the GMC.
DR ZIA :  I think that (inaudible) the whole findings should be quashed out, not only an abuse of process but the findings, the findings itself for the whole process. I mean I don’t know if I say that I’m being prejudiced against the GMC but there is a set of rules that the GMC have the opportunity to look at the evidence as they are under a duty to do and they haven’t done it and I think the whole allegations should be quashed out by the GMC.  
JUDGE GILBART :  But let's just understand. If you had succeeded in your argument before the fitness to practise panel at the beginning that it was an abuse of process then what would have happened is that they would have had to start again.
DR ZIA :  Exactly.  You start again but they would have looked the medical records and looked at the key evidence, and at this point if you look at my skeleton  argument say if you look at my skeleton argument you would and the GMC as well would see that there was no merit if they had considered this case properly when the steps that were necessary to go as put forward on their website.  They would have looked at the merits and the case would have been dismissed by the case examiners because there’s so much evidence (inaudible)
JUDGE GILBART :  Thank you.  Do you want to say anything else Mr Pievsky?
MR PIEVSKY : No, my Lord
JUDGE GILBART :  Mr Pievsky has argued that I should act under subparagraph (d) of paragraph 7.  In other words I should remit the case to the Registrar for him to refer it to a fitness to practise panel to dispose of the case in accordance with the directions of the court.  Dr Zia contends that the findings of the fitness to practise panel should be quashed as being unsupportable.  I cannot accept Mr Pievsky's submission.  The vice at the heart of this problem is that this matter did not go to the case examiners, so referring it to the fitness to practise panel under subparagraph (d) does not cure the vice.  So far as Dr Zia is concerned, while I have sympathy with him, it seems to me that the fundamental point which he raised himself before the fitness to practise panel and rightly so was that the case had reached that point without proper investigation.  It follows that the logic of that is that none of the decisions made by the fitness to practise panel can stand.  It seems to me therefore that the only course that is open to me is to allow the appeal and to quash the direction appealed against, but I make it plain that in my judgment the allegations are still extant and the GMC must follow the procedure it should have followed in the summer of 2008.  

What I am about to say is entirely obiter but should be said.  It would be very surprising indeed, having read the evidence, that the GMC will continue with the allegations relating to child B and many of the allegations which in the event failed.  That is a matter for their judgment and I cannot bind them.  So that is the order of the court.  

We will now pass to the next stage which is costs. Dr Zia you have won.  Have you got an application for costs?
DR ZIA :  Yes.
JUDGE GILBART :  Have you passed details of your costs claim to Mr Pievsky?
DR ZIA :  I haven’t passed them across. I don’t know how the procedure works ...
JUDGE GILBART :  That is how it works.  What I will do is I will rise for  a few minutes and Mr Pievsky can consider them.  But before we do that Mr Pievsky do you have any other applications?
MR PIEVSKY : My Lord, do you mean not in relation to costs?
JUDGE GILBART :  Yes. Are you applying for permission to appeal/
MR PIEVSKY : Yes I am.
JUDGE GILBART :  Yes.
MR PIEVSKY : Very briefly my Lord. The GMC submits firstly that the issue of the proper relationship between Rules 4, 7 and 8 of the Rules is an important question and one that ....
JUDGE GILBART :  I would like to hear Dr Zia. Dr Zia, Mr Pievsky is applying for permission to appeal.  I am bound to grant him permission to appeal, If I consider that he has arguable points;  do you want to say anything?
DR ZIA :  I think we had this discussion during the course of this two years, we had this discussion before the Fitness to Practise Panel and (inaudible)  In my opinion the rules set are quite clear and even the GMC themself put the Rules clear in the website.  That is a summary of the interpretation of the Rules which would of course be seen the public but that is how the GMC themselves interpreted the rules and now we have in the High Court the GMC says  interpretation of the rules are different but that in view of the interpretation of them that these Rules are as summarised on the website.  I think you should be rejecting this application for appeal because we have extensive discussion of these rules now for about a year.
JUDGE GILBART :  Thank you.  I think you should have permission to appeal. I think there is a point of public importance here, Mr Pievsky.  I say that with no enthusiasm but I consider you should have permission to appeal. I will rise now for 15 minutes to enable you to consider Dr Zia's claim for costs. How many copies have you got, Dr Zia?
DR ZIA :  I only have one copy
JUDGE GILBART :  Well let's get it copied and I would like to see it. So let me know when you are ready.  I will assume about half past.