England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		28/07/2011

Mrs Justice Nicola Davies:

1. The appellant appeals pursuant to section 40 of the Medical Act 1983 ("the 1983 Act") against a determination of a Fitness to Practise Panel of the General Medical Council ("the Panel") dated 27 May 2010 that his fitness to practise was impaired and that, as a result, his registration should be subject to conditions for a period of 12 months.
2. The appellant was employed by the Dudley Group of Hospitals NHS Trust ("the Trust") as a consultant in orthopaedics and trauma at Russell Hall Hospital from October 2000 to March 2007. Concerns were expressed about his clinical performance and as a result a rapid response review was carried out in February 2003 by the Royal College of Surgeons (RCS) and the British Orthopaedic Association (BOA). The review suggested that the appellant should reduce his workload within the guidelines of the BOA, that there should be a reduction in the general level of his orthopaedic practice, and that there should be a rationalisation of the breadth of his work. The appellant continued to carry out a broad range of procedures. In November 2005 he was suspended by the Trust following concerns raised as to his performance, this employment was subsequently terminated.
3. Between November 2006 and January 2007 the appellant was seconded to Mr A. Broodryk, a consultant orthopaedic surgeon, and Professor A. Wallace, Professor of Orthopaedics, at Nottingham City Hospital. Further secondments to Mr Broodryk took place between June and July 2007 and in November 2007. The appellant undertook a further five month secondment at Heartlands Hospital, Birmingham, between February and July 2009.
4. In May 2007 the appellant was invited to undergo a GMC assessment of his professional performance as a result of concerns brought to the attention of the GMC by the Trust. The appellant agreed, the assessment was carried out in February 2008. The assessment comprised tests of competence (a surgical knowledge test, an orthopaedic knowledge test, tests of communication skills and a practical test of surgery skills) and peer review (a site tour, assessment of medical records, case based discussions with the appellant, and third party interviews). The Assessment Team consisted of Mr Alan Turner, team leader, a consultant urologist, two medical assessors who were both orthopaedic surgeons, Mr Villar and Mr Hooper, and a lay assessor with training in the technique of third party interviews and assessing, Dr Trevor Rothwell. In its report the Assessment Team concluded that the appellant's performance was unacceptable in five areas of Good Medical Practice, cause for concern in three and that he presented an overall cause for concern in tests of competence. The Team recommended that he should work only in a supervised position where his clinical decision making would be checked, his teamwork and behaviour in theatre could be monitored and that he should restrict his practice to primary hip and knee replacements and knee arthroscopies.
5. As a result of the conclusions of the Assessment Team, in September 2008 the GMC invited the appellant to agree undertakings. He declined to do so. His case was, therefore, referred to a Fitness to Practise hearing. The hearing took place from 17 to 26 May 2010. The charge at the hearing read:

"1. Between on or around 2 October 2000 and on or around 20 March 2007, you were employed by The Dudley Group of Hospitals NHS Trust as a Consultant in Orthopaedics and Trauma.

2. By letter dated 23 May 2007, the General Medical Council ("GMC") invited you to undergo an assessment of the standard of your professional performance ("assessment") to which you agreed.

3. That assessment took place on:

a. 6 February 2008 (Tests of Competence), and

b. 17 to 19 February 2008 (Peer Review).

4. Your professional performance was unacceptable in the following areas of Good Medical Practice:

a. Referring patients when indicated and working within limits of competence.

b. Record keeping.

c. Paying due regard to efficacy and use of resources.

d. Constructive participation in audit, assessment and appraisal.

e. Relationships with colleagues/GPs/teamwork.

5. Your professional performance was a cause for concern in the following areas of Good Medical Practice:

a. Providing or arranging treatment.

b. Working within laws and regulations.

c. Communication with patients, listening to patients, respecting their views and providing comprehensive information.

6. In the Tests of Competence on the surgery core knowledge test:

a. Your mean score was 79.52%, as compared to the minimum acceptable score of 85%.

b. Your performance was a cause for concern.

and that by reason of the matters set out above your fitness to practise is impaired because of your deficient professional performance."

6. At the hearing the Panel heard oral evidence from the three medical members of the Assessment Team and from the appellant himself. It also had before it the Performance Assessment Report and documents submitted by the appellant, including evidence of the courses and training undertaken by him. Having considered all of this evidence, the Panel found the majority of the factual allegations against the appellant proved. It found that the appellant's professional performance was unacceptable in the following areas of Good Medical Practice: referring patients when indicated and working within the limits of competence; record keeping; constructive participation in audit, assessment and appraisal; and relationships with colleagues/GPs/teamwork. It found that his performance was a cause for concern in two further areas of Good Medical Practice: providing or arranging treatment and working within laws and regulations. His performance was also a cause for concern in the tests of competence on the surgery core knowledge tests.
7. As to the question of impairment, by the date of the hearing the appellant had, as the Panel recognised, made extensive efforts to keep his medical knowledge and skills up to date. However, the Panel concluded that notwithstanding these efforts the appellant's fitness to practise was impaired and imposed conditions upon the appellant's registration.

Statutory Framework

8. The GMC has a statutory obligation to investigate whether a doctor's fitness to practise is impaired. By section 1(1A) of the 1983 Act its main objective in exercising its functions is "to protect, promote and maintain the health and safety of the public".
9. Section 35C of the 1983 Act, headed "Functions of the Investigation Committee", provides as follows:

"(1) This section applies where an allegation is made to the General Council against—

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—

(a) misconduct;

(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."

10. By section 55 of the 1983 Act "professional performance" includes a medical practitioner's professional competence.
11. Paragraph 5A of Schedule 4 to the 1983 Act provides for performance assessments, as follows:

"(1) The General Council may make rules-

(a) Authorising the giving of directions by any of

(i) the Investigation Committee

(ii) a Fitness to Practise Panel

(iii) such other persons as may be specified in the rules,

requiring an assessment of the standard of a registered person's professional performance to be carried out;

(b) specifying the circumstances in which such an assessment may be carried out otherwise than in accordance with a direction.

(2) An assessment carried out by virtue of this paragraph shall be carried out by an Assessment Team in accordance with rules under this paragraph; and the rules shall, in particular, provide-

(a) for the constitution and proceedings of Assessment Teams

(b) for the procedures to be followed by such Teams in carrying out assessments; and

(c) for the procedures to be followed following the making of a report by an Assessment Team.

(2A) 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.

......."

12. The General Medical Council (Fitness to Practise) Rules 2004, Rule 3, provides for the appointment of panels of advisers, assessors and examiners. Rule 3(1) provides that "[t]he Registrar may appoint – (a) a panel of medical and lay performance assessors for the purposes of carrying out performance assessments in accordance with Schedule 1."
13. Rule 4 provides as follows:

"(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."

14. Rule 7 "Investigation of allegations" provides:

"(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.

....

(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."

15. Schedule 1 to the 2004 Rules, makes provision in relation to performance assessments. Paragraph 2(2) provides that:

"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."

16. 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." Paragraph 3 of Schedule 1 makes provision for proceedings and procedures of Assessment Teams as follows:

"(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. 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)."

18. 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 Fitness to Practise Panel: Rule 10(8).
19. The procedure before a Fitness to Practise Panel is governed by Part 4 of the Rules. Rule 17 provides for the Panel to approach its determination in stages: making findings of fact (Rule 17(2)(i); a finding on whether the fitness to practise of the practitioner is impaired (Rule 17(2)(k); and what, if any, sanction is to be imposed (Rule 17(2)(n)).

The Appellant's Case

20. It is accepted by the appellant that the GMC was entitled to ask for a performance assessment. The appeal is directed at the manner in which the assessment was carried out and scored and to the approach of the Panel to criticisms of the process raised by or on behalf of the appellant. It is said that the inadequacies of the assessment procedure were such that it failed to deliver a fair assessment of the ability of the appellant to work as a consultant orthopaedic surgeon. Specifically, the following grounds of criticism are raised:

i) The tests conducted were of such poor quality and the mechanism by which the results were computed was so deficient as to render the process flawed;

ii) The component of the assessment which included third party interviews was skewed by the selection of the interviewees who were known to be the least sympathetic to the appellant, they having been signatories to a complaint letter dated 12 October 2005. No junior doctors were interviewed;

iii) No testing of the credibility and genuineness of the answers given took place, the answers were shown to be inconsistent and contrary to fact; the Panel arbitrarily chose to rely on the third party interviews to an unknown extent;

iv) The appellant was arbitrarily prevented from putting forward a third and effective referee; the references and months of supervised and monitored work he had performed with Mr Broodyrk and Mr McDonald were not given sufficient weight;

v) No proper investigation was performed by the Assessment Team. As this was not done the appellant could not rebut or examine allegations based upon inadequate material. There was no proven case of mistreatment of a patient or misconduct;

vi) The appellant was failed (by the appeal process in front of the Panel) which fell back on "the vague mantra", "the unquantifiable element" that "the appellant failed to show insight into his deficiencies and had still to take sufficient steps to remedy the failings." The appellant's case is that in contradicting the assessment procedure and the Assessment Team for its failings and shortcomings this rendered the appellant liable to be criticised for lack of insight;

vii) The Panel was not prepared to take on board the criticism made on behalf of the appellant that the material presented by the team of assessors was not fit for purpose.

The Respondent's Case

21. The Performance Assessment Team was selected in accordance with paragraph 2 of Schedule 1 to the 2004 Rules. In particular, two medical performance assessors were appointed by reason of the fact that the team leader was not an orthopaedic surgeon. Assessors were allocated to parts of the assessment well within their expertise. There is no basis for the contention that they were in any way "deficient". The Panel's Determination that the appellant's performance was a cause for concern in the surgery core knowledge test was based upon the judgments expressed by the assessors rather than the numerical values which had been attached to their judgments.
22. Third party interviews form only one part of the performance assessment, information emanates from other sources such as tests of competencies and case based discussions. Six interviewees were chosen by the Assessment Team, identifying those with whom the appellant would have closely worked, two were nominated by the appellant. They were not chosen on the basis that they were "known to be the least sympathetic to the case of the appellant". The interviewees were asked pro forma questions set by the GMC based on areas of Good Medical Practice. Once the interview was conducted a transcript was prepared and supplied to the appellant, who was asked to provide his comments. The Panel had well in mind the fact that the third party interview information had not been explored in oral evidence or tested in cross-examination. This was relevant to the weight to be attached to such evidence. Furthermore, it was open to the appellant's solicitors to ask for the third party interviewees to attend the FTP hearing for cross-examination. This had been canvassed in correspondence but no such request was made by or on behalf of the appellant prior to the hearing in May 2010.
23. The appellant's contention that he was arbitrarily prevented from putting forward a third and very effective referee is not made out. It was open to the appellant to submit whatever evidence he chose to the Panel in support of his defence. He gave evidence orally and submitted a significant amount of documentation. He could have invited other witnesses to give evidence on his behalf orally before the Panel but did not.
24. It is clear from its Determination that the Panel considered and afforded significant weight to the evidence advanced by the appellant at the hearing. There is no basis for a contention that such evidence was ignored or given insufficient weight. The Panel was fully entitled to find that the appellant's fitness to practise was impaired for the reasons it gave. The question of whether the appellant had insight into the particular areas identified by the Panel as of key concern was clearly relevant to the question of risk to the public.

The Performance Assessment

25. Specific criticism is made by the appellant of different aspects of the performance assessment.

Tests of competence

26. The appellant undertook tests on the following topics: surgical knowledge, orthopaedic knowledge, a practical test of surgical core skills and specialist orthopaedic stations. All these tests were scored and graded by the surgical assessors, Mr Hooper and Mr Villar. The appellant also undertook tests of communication skills which were graded by Mr Hooper, Mr Villar and Dr Rothwell. The scoring/judgments made by the assessors were recorded using the following scale: A – acceptable, C – cause for concern, U – unacceptable.
27. The grading recorded by the assessors was then given a mathematical marking by a separate person. Different weight was accorded to different answers.
28. Before this court two particular criticisms were made. Firstly, that a different person ascribed an unknown mathematical marking to the assessors' gradings. The point taken by the appellant's counsel was that if the method of scoring attached to individual assessments is unknown, he is not able to properly address the Panel upon the results recorded. Secondly, criticism is levelled at the discrepancy in the markings by the two orthopaedic assessors. It was said that the higher of the two assessments was given by the assessor best qualified in this field.
29. In response to the criticisms made on behalf of the appellant, the respondent's primary case is that set out in paragraph 21 above. Further, it was submitted that the limited scoring produced was insufficient of itself to undermine the whole assessment. In each of the competencies, the Panel would be looking at the underlying evidence, not just the gradings. Therefore, even if the numerical scoring was wrong or insufficiently explained, that does not of itself lead to a finding that the judgements of the assessors were incorrect.
30. The assessors gave evidence. The criticism of the process was raised in cross-examination. The appellant's counsel and the Panel were afforded the opportunity to explore and assess the evidential basis of the assessments provided. Given this process, I find that the appellant's criticisms of the subsequent scoring by a third party cannot survive the scrutiny of the evidential basis of the assessments which took place at the hearing.
31. As to discrepancies in gradings and the knowledge and experience of the individual assessors, the questioning of the assessors, by counsel on behalf of the appellant, was directed to these points. It was questioning that was taken up by the Panel. The discrepancies were accepted, the points were fully ventilated both in cross-examination and in closing submissions by counsel on behalf of the appellant. Neither assessor sought to hide behind the discrepancies.
32. The assessments were performed by independent clinicians appointed in accordance with the relevant Rules exercising their own professional judgment. It would be surprising if, through a series of markings, they provided the same scores. What their individual scores demonstrate is an independence of mind and, with it, the independence of the process. The appellant was given every opportunity through his counsel to raise and explore his concerns at the hearing. It was for the Panel thereafter to assess the weight to be given to the evidence and the points raised. There is nothing in the scoring, the evidence given at the hearing or the Determination to substantiate this specific criticism.

Third Party Interviews

33. Six colleagues of the appellant were nominated by the Assessment Team to be interviewed. Four of those interviewed were orthopaedic surgeons, two were nursing sisters. No criticism was made of the selection of the nursing sisters.
34. The four surgeons had been colleagues of the appellant. They had also been signatories to a letter dated 20 October 2005 which raised complaints as to the work of the appellant. One of those interviewed, Mr Qureshi, took over the appellant's job following his suspension and/or termination of employment. During the course of the interviews, which were conducted using pro forma questionnaires, the interviewees gave responses which included information from other individuals working within the Trust. Recorded was the fact that there were "serious issues" in the way in which the appellant dealt with junior, nursing and theatre staff. Criticism is made of the fact that no junior doctors were interviewed.
35. The fundamental criticism made of this aspect of the performance assessment is that given the history of matters between the appellant and his orthopaedic colleagues, they would have their own "axe to grind" in giving answers and that is not something of which proper account could be taken by assessors as part of this process.
36. The issue of the previous history and its effect upon answers given by consultant colleagues was raised at the hearing, the assessors were cross-examined upon it. Mr Hooper stated that he would take the answers even if he was aware of the history. He accepted that an assessor can be aware of "bad blood" but it was not something which he said they could investigate. Another assessor, Mr Turner, stated that account would be taken of such a history, it is something which would be factored in. As to problems relating to third parties who were not interviewed, the evidence was that the weight to be attached to such a problem would depend upon the number of sources who raised the matter.
37. The appellant placed reliance upon answers given by Mr Qureshi who identified patients of the appellant with poor post surgery results. At the hearing, the assessor was cross-examined as to that evidence in respect of one particular patient, it being put to the witness that the post-operative infection resulted from an operation that had been performed by Mr Qureshi. The assessor stated that in asking Mr Qureshi questions, he proceeded upon the basis that the answers would represent the truth. The assessor said it was not his task to reinvestigate each case but to perform an overall assessment. It was explained that a copy of the transcript of the interviews would be given to the assessee, if the assessee did not accept the truth or accuracy of any such answer then it could be raised. That is what occurred before the Panel.
38. It is understandable that the appellant, sensitive to the history as between himself and former colleagues, views with suspicion and/or distrust any answers given by them as part of the assessment process. However, of itself, that is insufficient to found this criticism. Two experienced nursing sisters were also interviewed, it is not suggested that they were part of the "history" of this matter. They were not uncritical of the appellant. What has to be considered are the answers given, which in each case were many. Careful scrutiny of the answers given by each of the interviewees demonstrates a variety of answers given by individual interviewees. Some answers assisted the appellant, others did not. In his evidence to the Panel, the appellant said that this was done by the interviewees to "balance" their answers so that account would be taken of the negative answers. I am of the view that this response is reflective of the distrust of the appellant rather than deliberate malafides on the part of those interviewed.
39. It made professional sense to select for interview those who practised in the same specialism of surgery and at the same level as the appellant. All those interviewed, including the nurses, could and should be able to draw on their own experience, and if appropriate, refer to third parties and any perceived problem. It is difficult to fault the approach of the assessors who accorded relative weight to third party difficulties depending upon the number of interviewees who raised the matter.
40. The criticism made by the appellant is a human one but I find that it is not borne out by the substance of the answers given. No one interviewed provided consistently negative responses. The concern of the appellant as to the lack of independence of those interviewed has been met in the provision to him of all the written responses and the ability to fully raise this matter before the Panel. On behalf of the respondent, it was stated that the appellant could have required the presence of those interviewed in order to be cross-examined upon the lack of impartiality. This was a course which the appellant and those acting on his behalf elected not to take.

Third Referee

41. In a letter dated 18 December 2007, the appellant was asked to provide the name of two referees who could be interviewed by the Assessment Team. It is his case that in so doing, the team arbitrarily precluded the appellant from relying on a third referee, Professor Wallace. The fact that Professor Wallace was not interviewed by the Assessment Team did not preclude him from being called to give evidence at the hearing. Moreover, his written assessment of the appellant was before the Panel and was positively referred to in the Determination. It is difficult to understand this ground of appeal as any complaint relating to the limiting of the number of referees could have been met by the calling of the relevant witness at the inquiry. It is clear from the Determination that the Panel did attach weight to the assessment of those who had supervised the appellant.

Inadequate Investigation

42. The criticism that no proper investigation was carried out by the Assessment Team appeared to start with the complaint that individuals who made "allegations" were not seen. It was said that if there had been poor treatment, this should have been investigated at the time. The assessment carried out was long after the event, and based upon inadequate materials.
43. This was a "broad brush" criticism. What it does not address is the fact that at the time the appellant was working at the Trust, concerns were being expressed which led to an external review. Complaints were made which had to have been investigated in order for disciplinary measures to have been taken. At the core of these complaints was the professional performance of the appellant. The GMC on receipt of complaint had to investigate. It did so invoking a procedure provided by statute and its own rules. The assessment was performed in compliance with that procedure. Any limitations in the procedure could be and were raised at the original hearing. The Panel were advised in the clearest terms by the Legal Assessor as to the approach to be taken to any flaws in the procedure. There is no good evidence upon which to find that the investigation was not properly performed.

Medical Records

44. My understanding of the appellant's case is that some of the medical records were incomplete. As part of the assessment, relevant medical records were seen by the assessors in 12 selected cases. Scrutinising the answers given by interviewees, it is clear that they commented favourably on the detailed notes made by the appellant.
45. The concerning criticisms of the appellant were those made by the nursing sisters: in one case no note was made of an intra-operative fracture which was only discovered in the follow up clinic by looking at the post operative x-rays; in another case the theatre sister was telephoned to enquire why a patient was non-weight bearing, the sister told the ward that this was because of an intra-operative fracture which was not recorded in the notes. The fundamental issue raised was whether the notes made by the appellant were a true record of what had actually happened.

Audit

46. On behalf of the appellant it is said that there was no formal audit at the Trust, the appellant did what he could in the limited circumstances; therefore to criticise him in this aspect of his work is unfair. On behalf of the respondent it is said that notwithstanding the absence of Trust-led audit, it is incumbent on the individual surgeon to carry out his own personal audit. The fact that the Trust did not have in place a formal audit is not a complete answer, if the surgeon fails to carry out his own personal audit.
47. There is force in the appellant's submission that when there was no proper audit process at the Trust he cannot be criticised for its absence. However, the concept of personal audit was well established by the time of these events. Surgeons practising in the field were or should have been aware of the need for personal audit of their results.
48. Separate from the first point, the assessment of audit by the assessors took account of the period when the appellant was in charge of audit. It was recorded that he liked to control it, his favourites were asked to participate and others were ignored. It was reported that if audits were presented by any other than his team and they were not "one hundred percent" he described them as "rubbish". Reported to the assessors was a feeling that the appellant did not have any insight into his own problems, he felt everything was satisfactory despite concerns being expressed. Specifically, it was stated that the appellant did not like being criticised, he would always take it adversely even commenting "it's not my fault". It is of note that in the overall assessment of audit, reference is made to the lack of insight of the appellant and the way in which he responded adversely to criticism.

Lack of insight

49. In essence the appellant's case is this: his criticisms of the manner in which the assessment process was conducted have been relied upon by the Panel to demonstrate a lack of insight on his part. It is said that the work of a consultant requires that person to have "great reserves of self-confidence" and it is those strengths which were being mislabelled in an attempt by the Panel to find the appellant to be at fault and lacking insight.
50. The Panel had before it not only the written results of the assessment but the oral evidence of three of the four assessors and the appellant. In addition to his oral evidence, the appellant relied upon a 24 page witness statement and letters from practitioners attesting to his skill and experience. In his evidence, the appellant dealt with what he perceived to be the problems of the assessment process, inaccuracies recorded, criticisms of his clinical and surgical skills. He gave evidence as to his history with his employing Trust and the difficulties which restrictions imposed by the Interim Orders Panel of the GMC had caused him. Reference was made to the successful period he had spent with Mr Broodryk. It is clear that what was at the core of the appellant's evidence was an unwillingness to accept the report of the assessors. It culminated in a question from the Chair as follows:

"Q Is there any aspect of the report that you accept?

A Yes, madam. I would be quite happy and prepared to restrict my practice to elective knee and hip surgery and upper and lower limb surgery, in keeping with practices at the District General Hospital. I am no longer a young surgeon, I am a senior surgeon, I am getting on a bit, my health is ok now but there will be a time when I would wish to slow down and I think this time I probably would do that."

51. It is noteworthy that when Mr Broodryk, who was supportive of the appellant, was interviewed by the assessors, the following was recorded:

"We learnt from the third party interview with Mr. Broodryk that whilst Mr. Sulaiman was with him Mr. Sulaiman performed very routine cases rather than complex cases (188). It was Mr. Broodryk's opinion that Mr. Sulaiman should limit himself to primary hips and knees and arthroscopies (220) Mr. Broodryk was also concerned that Mr. Sulaiman, as he was so willing to help, took on a huge workload and that it was very difficult for him to maintain experience in all areas."

The report of the assessors continues:

"The latter was reflected in other third party interviews when people expressed concern about the broad nature of his work which he did not wish to reduce.

He was quoted as not knowing his limitations and he did procedures that he was advised not to do, for example back surgery and unfortunately, his blood loss was excessive following micro-discectomy.

Theatre staff felt that Mr. Sulaiman thought that he could tackle anything and always wanted to carry out new procedures, for example minimally invasive surgery, without appropriate instruments.

It was reported to us that after Mr. Sulaiman was first suspended he was advised to restrict his practice. Unfortunately this did not happen and the same problems recurred.

In summary, therefore, Mr. Sulaiman did not recognise the limits of his competence. He wanted to do a wide variety of procedures even though he most probably was not fully trained in the various techniques. It was hoped that after his first suspension that he might gain insight into the problem but, unfortunately, this does not seem to have happened and the same problems occurred. However, when in a restricted environment such as that which he is in at Nottingham he performs very well and, as can be seen, Mr. Broodryk feels that he should limit his practice to primary hips, knees and arthroscopies. As whilst working at Russell Hall Hospital, he did not recognise the limits of his competence and the overall assessment must be unacceptable."

52. The lack of insight on the part of the appellant as to why it was necessary to limit the scope of his work is reflected in his answer to the Chair's question at paragraph 50 above. Mr Broodryk could not support the breadth of practice which the appellant still wished to undertake. It is of note that the Assessment Team supported Mr Broodryk's recommendation. In 2003, following the external review, it was suggested that the appellant should reduce the scope of his practice. He did not accept that suggestion. All these facts were before the Panel for them to consider and give such weight as they thought appropriate. There was clear evidence before them to substantiate a finding that the appellant lacked insight. There are no grounds upon which this court could find that such a conclusion was a response to the appellant's criticism of the assessment process.

Advice of the Legal Assessor

53. At the conclusion of the factual part of the hearing, the Legal Assessor provided the following advice in relation to the Panel's determination upon the facts:

"The question is not of course whether the performance assessment was flawed in the sense that the assessors were not following the required procedure for carrying out an assessment. It is whether you find as a fact that the doctor's performance was unacceptable or a cause for concern in the respects which were alleged.

In reaching its decision the panel should take into account all of the evidence, oral and documentary, which it has received in this case, the advice of the Specialist Performance Adviser, the submissions of counsel and the General Medical Council's guidance. How you assess the evidence and what weight you attach to it are questions for you.

....

Some of the evidence is in the form of written material. That is part of the evidence for you to consider in the same way as evidence which is given from the witness box. In considering what weight to attach to it, you should have in mind that it has not been explored in oral evidence or tested by cross examination. You should consider such matters as whether you accept that the person providing the information has knowledge of the matters of which he or she is speaking, whether he has an axe of his own to grind or an animosity against doctor. The other factors which in your judgment affect whether you can rely on the evidence and if so what weight you should attach to in the context of this case, that may apply for example to anything that is said in the third party interviews by the doctor's colleagues.

Insofar as any of the information from those who have not given oral evidence before you involves an expression of opinion, you will also need to consider whether the source of the information is someone who is competent to form an opinion on the matters to which he speaks. You should have in mind that the absence of a piece of evidence is not necessarily the same thing as evidence that something did not occur. This may be of particular relevance when one is dealing with documents which may only be part of the totality of a patient's medical records.

Dr Sulaiman has given evidence to you. You should treat that evidence in the same way as any of the other evidence in the case. It should not be regarded as of lesser value because it comes from the practitioner whose performance is in question. You should only reject it if you are satisfied, having considered the whole of the evidence, that that is the right course. You have heard that Dr Sulaiman has not been the subject of any previous findings by a Fitness to Practise Panel nor apparently of any similar body of the other countries where he has practised and is of good character in the sense that he does not have any criminal convictions."

54. The Legal Assessor made clear that the performance assessment was one aspect of the evidence before the Panel, it had its limitations, what was at the core of the Panel's consideration was whether, considering all of the evidence, the doctor's performance was unacceptable or a cause for concern in the respects alleged. The advice was fair and properly reflected the totality of the evidence before the Panel.

The Panel's Determination upon the facts

55. The Determination given by the Panel is considered and detailed. In his submissions to this court, counsel for the appellant directed the substance of his argument to the flaws of the assessment procedure. It is clear from the detail of the Determination that the Panel took account of the criticisms made by the appellant and, where appropriate, accorded them due weight. It is also clear from that detail that the Panel scrutinised the evidence underlying the assessments and took full account of the evidence given by the appellant.

Conclusion

56. There is no good evidential basis upon which a conclusion that the assessment procedure was flawed can be founded. The report provided by the Assessment Team was but one part of the evidence before the Panel. The criticisms made by or on behalf of the appellant were given voice at the hearing and account was taken of them by the Panel. The Panel was afforded every opportunity to assess the appellant by means of his written and oral evidence. There are no grounds for finding that the factual determination made by the Panel was flawed.
57. It was accepted before this court that if the appellant failed upon the primary factual ground that would conclude the appeal.
58. Accordingly, this appeal is dismissed.