England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		03 November 2011

The Hon Mr Justice Lloyd Jones :

1. This is an appeal by Dr. Karem Belal pursuant to section 40, Medical Act 1983 ("the 1983 Act") against the determination of a Fitness to Practise Panel of the General Medical Council ("the Panel") dated 20^th May 2011 to erase him from the medical register. In this appeal Dr. Belal challenges certain findings of fact made by the Panel, certain of its findings of misconduct and impairment and the decision to erase him.
2. Dr. Belal qualified as a general practitioner in February 2001 but did not practise as a general practitioner in the United Kingdom until April 2003. From April 2003 to April 2004 he worked as a locum. He joined the Park Surgery in Newport in September 2004 and worked there for 13 months. In late 2005 he purchased the Caerau Lane Practice in Cardiff and worked there from early 2006. In 2006 he also bought the Byways Surgery. During this time he also took on a substantial amount of out of hours work for various agencies in Wales. In May 2006 Dr. Belal applied to be admitted onto the Luton PCT Performers' List and was admitted to that list in September 2006.
3. Following a number of complaints about Dr. Belal's performance, the GMC wrote to him in April 2007 inviting him to agree to a Performance Assessment. The Performance Assessment was carried out in November and December 2007. In its report dated 2^nd February 2008 the Assessment Team concluded that Dr. Belal's professional performance was seriously deficient in many of the core areas of professional medical practice. It recommended, inter alia, that he stop working as a General Practitioner immediately.
4. In the meantime Dr. Belal had appeared before the GMC's Interim Orders Panel. On 27^th April 2007 conditions were placed upon his registration. The Order provided in relevant part:

"The Panel has determined in accordance with section 41A of the Medical Act 1983, as amended, that it is necessary for the protection of the members of the public, in the public interest and in your own interests to make an order imposing conditions on your registration for a period of 18 months as follows:

1. You must notify the GMC promptly of any professional appointment you accept for which registration with the GMC is required and provide the contact details of your employer and PCT on whose Medical Performance List you are included.

2. You must allow the GMC to exchange information with your employer or any organisation for which you provide medical services.

3. You must inform the GMC of any formal disciplinary proceedings taken against you, from the date of this determination.

4. You must inform the GMC if you apply for medical employment outside the UK.

5. You must confine your medical practice to work at the NHS general practice where you are currently a General Practice Principal.

6. You must not undertake any locum posts.

7. You must not undertake any out-of-hours work or on-call duties for an out-of-hours or deputising service. This does not preclude you from out-of-hours care of patients in your own practice.

8. You must not carry out any private practice other than for patients who are patients of your own practice.

9. You must inform the following parties that your registration is subject to the conditions listed at (1) to (8) above.

Any organisation or person employing or contracting with you to undertake medical work

The PCT in whose Medical Performance List you are included, or seeking inclusion (at the time of the application)."

5. In February 2008 Dr. Belal left the United Kingdom following the performance assessment report. He then made attempts to obtain employment overseas. In February 2008 he sent his curriculum vitae and various other documents to International Medical Recruitment, a recruitment agency.
6. The interim order was reviewed on ten occasions. The conditions were varied on 20^th February 2008 and were maintained until 21^st January 2009 when the Interim Orders Panel determined that Dr. Belal's registration should be suspended. The interim order for suspension was maintained until the Fitness to Practise Hearing before the Panel.
7. The allegations before the Panel fell into two categories. The first contained allegations of deficient professional performance arising from the performance assessment. The second contained allegations of misconduct relating to

(a) Dr. Belal's alleged failure to address outstanding debts owed to his former partners at Park Surgery Newport;

(b) Dr. Belal's working hours whilst working as a GP principal in Cardiff while at the same time being under contract to provide out of hours services for a number of providers;

(c) Failing to comply with the orders of the Interim Orders Panel and failing to disclose the true status of his registration.

His conduct was alleged to have been misleading and dishonest.

8. The notice of hearing dated 25^th March 2011 provided in relevant part

"19. In breach of the terms of an interim order, on or after 27 April 2007 you did not inform

(a) the GMC of your inclusion in the Luton PCT Medical Performers List;

(b) the Luton PCT that your registration was subject to interim conditions.

20. In breach of the terms of an interim order, in February 2008 you did not inform

(a) Dr. Raewin Upsdell that your registration was subject to interim conditions,

(b) the GMC that you had applied for medical employment outside of the UK;

21. On or around 26 April 2009 you did not inform the Health Authority of Abu Dhabi that your UK registration was suspended;

22. Your acts and omissions in paragraphs 19, 20 and 21 were

(a) misleading,

(b) dishonest.

And that by reason of the matters set out above your fitness to practise is impaired because of your

(a) misconduct,

(b) deficient professional performance."

9. The hearing before the Panel occupied 14 days in May 2011. At the conclusion of the hearing the Panel found a number of factual allegations not proved. Furthermore, although it made findings of misconduct in relation to Dr. Belal's failure to pay his debts and his working hours it concluded that this conduct was neither misleading nor dishonest. It made a finding of misconduct in respect of a breach of the terms of the interim order by failing to inform the GMC of his inclusion in the Luton PCT Medical Performers List and his failure to inform Luton PCT that his registration was subject to interim conditions. It also found that those failures were misleading but not dishonest. Furthermore, it made findings of misconduct in relation to Dr. Belal's attempts to obtain medical employment overseas. In addition, it found that that conduct had been misleading and dishonest and that as a result his fitness to practise was impaired by reason of misconduct. The Panel also held that Dr. Belal's fitness to practise was impaired by reason of deficient professional performance. The Panel concluded that Dr. Belal's misconduct, aggravated by his deficient professional performance, was incompatible with his continuing to be a registered medical practitioner. Accordingly it determined to erase his name from the Medical Register.

Statutory framework

10. 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".
11. Section 35C addresses the functions of the Investigation Committee, and provides in relevant part:

"Functions of the Investigation Committee

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

(a) a fully registered person;

…

that his fitness to practise is impaired.

(2) A person's fitness to practise shall be regarded as "impaired" for the purposes of this Act by reason only of—

(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."

12. Section 35D sets out the functions of a Fitness to Practise Panel in the following terms.

"Functions of a Fitness to Practise Panel.

(1) Where an allegation against a person is referred under section 35C above to a Fitness to Practise Panel, subsections (2) and (3) below shall apply.

(2) Where the Panel find that the person's fitness to practise is impaired they may, if they think fit—

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

(b) direct that his registration in the register shall be suspended (that is to say, shall not have effect) during such period not exceeding twelve months as may be specified in the direction; or

(c) direct that his registration shall be conditional on his compliance, during such period not exceeding three years as may be specified in the direction, with such requirements so specified as the Panel think fit to impose for the protection of members of the public or in his interests."

The powers of the Administrative Court on an appeal pursuant to section 40.

13. Section 40 (7) of the 1983 Act provides:

"(7) On an appeal under this section from a Fitness to Practise Panel, the court may—

(a) dismiss the appeal;

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

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

(d) remit the case to the Registrar for him to refer it to a Fitness to Practise Panel to dispose of the case in accordance with the directions of the court,

and may make such order as to costs (or, in Scotland, expenses) as it thinks fit…"

14. CPR 52.11(3), which applies to this appeal, provides that:

"(3) The appeal court will allow an appeal where the decision of the lower court was –

(a) wrong; or

(b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court."

15. The approach of the court on an appeal such as this was set out in Ghosh v General Medical Council [2001] 1 WLR 1915. There Lord Millett described the jurisdiction of the Privy Council, which at that time heard appeals such as this, in the following terms:

"33…The Board's jurisdiction is appellate, not supervisory. The appeal is by way of a re-hearing in which the Board is fully entitled to substitute its own decision for that of the committee. The fact that the appeal is on paper and that witnesses are not recalled makes it incumbent upon the appellant to demonstrate that some error has occurred in the proceedings before the committee or in its decision, but this is true of most appellate processes.

34…[T]he Board will accord an appropriate measure of respect to the judgment of the committee whether the practitioner's failings amount to serious professional misconduct and on the measures necessary to maintain professional standards and provide adequate protection to the public. But the Board will not defer to the committee's judgment more than is warranted by the circumstances…"

16. In Raschid v General Medical Council [2007] 1 WLR 1460 the Court of Appeal addressed, more specifically, the proper reach of the High Court's power on appeal under section 40 of the Medical Act 1983 to vary a sanction imposed on a practitioner by the Panel. Laws L.J. identified two strands in the authorities:

"One differentiates the function of the panel or committee imposing sanctions from that of a court imposing retributive punishments. The other emphasises the special expertise of the panel or committee to make the required judgment." (at para 16).

He concluded:

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

Grounds of appeal

17. By this appeal Dr. Belal challenges certain findings of fact made by the Panel, certain of its findings on misconduct and impairment and the decision that he be erased from the Medical Register.

Findings of fact

Head 20

18. In February 2008 International Medical Recruitment forwarded Dr. Belal's details to Dr. Raewyn Upsdell, a General Practitioner in New Zealand, who was seeking to appoint a General Practitioner to her practice at Victoria North Clinic, in Hamilton. In February 2008 she contacted Dr. Belal. These matters gave rise to the charges in paragraphs 20A and 20B.

Paragraph 20A

19. The Panel made the following findings of fact in relation to paragraph 20A:

"Paragraph 20A has been found proved.

The Panel has borne in mind the relevant interim order condition, namely Condition 9, which states that:

"You must inform the following parties that your registration is subject to …conditions…

Any organisation or person employing or contracting with you to undertake medical work…"

The Panel has noted the oral and documentary evidence from Dr. Raewyn Upsdell, General Practitioner in New Zealand. This evidence showed that Dr. Upsdell not only offered you a job, but that you accepted the position. The Panel finds that in accepting the position you contracted with Dr. Upsdell to undertake medical work. Dr. Upsdell told the Panel that, at no stage in the contractual negotiations, did you inform her that your registration was subject to conditions. Your explanation that you believed you had fulfilled your obligation by informing the recruitment agency, through which contact had been established, was not accepted because the obligation in respect of conditions falls upon you personally."

20. It was Dr. Belal's case below that although he had not told Dr. Upsdell of the conditions, he had advised the agency of the conditions. His evidence in chief was in the following, rather vague, terms:

"I applied through the agency. To my memory I told them about my situation here in the Medical Council in the UK. They said, "There are other applicants who have the same problem. It does not mean you are not allowed to work, but we can look at this matter and apply to you on your behalf". They did apply to me. I cannot remember exactly the details of the discussion between me and my colleague, the other lady doctor in New Zealand at that time." (Day 11/1).

However in cross examination he accepted that he had supplied to the agency in February 2008 a copy of his annual registration certificate issued by the GMC on 20^th March 2007 but had not supplied a copy of the order of the Interim Orders Panel made on 23^rd April 2007. Dr. Belal's evidence was that he did not know whether the annual registration certificate would have been supplied by the agency to New Zealand. When asked why he had not supplied the agency with a copy of the order of the Interim Orders Panel he said that they did not ask for it at the time and they said that they could access the internet to find his details there. He denied that he withheld the document containing the conditions because he did not want them or prospective employers to know about them. He said:

"…because sooner or later, before I step and make a contract for the job they will know and I will tell them about my situation here." (Day 11/31d).

21. Whatever Dr. Belal may have told the agency, the Panel was clearly correct in its conclusion that it was his responsibility to notify Dr. Upsdell of the true position in relation to his practising status. Accordingly any disclosure to the agency could not relieve Dr. Belal of liability for breach of the condition if he failed to tell Dr. Upsdell.
22. However, Dr. Belal raises a further objection to the finding that he was in breach of Condition 9. He contends that the obligation under Condition 9 was to disclose the conditions to an organisation or person "employing or contracting" with him to undertake medical work. He maintains that Dr. Upsdell's practice was not employing him, nor had it contracted with him and that accordingly the obligation of disclosure did not apply.
23. Before the Panel it was the position of the GMC that in order for Condition 9 to apply it would be necessary to establish that Dr. Belal was employed by Dr. Upsdell's practice or entered into a contract with it. The GMC maintained that the contract had been made and that it was immaterial that it was subject to approval by the New Zealand Medical Council. (Day 11/28H-29A). On the appeal, Ms. White, who appeared on behalf of the GMC, made clear that that remained the position of the GMC. She accepted that there had to be a contract before Condition 9 could apply. She did not seek to argue that there could be a breach of Condition 9 in the absence of a binding contract.
24. On 6^th February 2008 Mr. Lemm of International Medical Recruitment sent an application on behalf of Dr. Belal to Pinnacle Group Limited, a recruitment agency in New Zealand, which in turn sent the information to Dr. Upsdell on 7^th February. The dealings between Dr. Upsdell and Dr. Belal took place principally by email but there were, in addition, telephone conversations between them. The exchanges by email included the following.

(a) On Friday 15^th February 2008 Dr. Upsdell sent an email to Dr. Belal thanking him for his telephone call in which he expressed interest in joining the Clinic. She stated that she had received the documents from the recruiter and asked Dr. Belal to include "a reference from someone you are working with currently e.g. one of the doctors or nursing staff at your clinic so that we can have an up to date reference on file". She stated that with the up to date reference she would forward the proposal to the recruiter and the process will continue from there. Dr. Upsdell provided further information about herself and her practice.

(b) On 16^th February 2008 Dr. Belal sent an email to Dr. Upsdell. He described himself and his family. He also set out his qualifications but did not refer to the conditions. Dr. Belal stated that he had talked to Mr. Lemm who was waiting for an offer so that he could proceed further to get the Medical Council registration and an immigration visa. "So it is very kind of you to confirm that you agree to take me in your practice". He also stated "Steve got my CV and all required documents".

(c) Later on 16^th February Dr. Upsdell sent an email to Dr. Belal, copied to Mr. Lemm, headed "Job offer at Victoria North Clinic, New Zealand". It stated

"I am pleased to offer you the position of General Practitioner at the Victoria North Clinic in Hamilton."

It then went on to set out the normal working hours and the rates of remuneration. It stated

"The General Practitioner contract and job description outline the details more fully. The business plan will also provide further information about this clinic."

There is no evidence that the General Practitioner contract or the job description were ever sent.

(d) On Sunday 17^th February 2008 Dr. Upsdell sent an email to Michelle Peters of Pinnacle Group Limited which stated

"Over the weekend Dr. Belal has agreed to a two year contract at Victoria North Clinic but the recruiter will get onto everything this week. Hopefully it goes smoothly with Immigration and the Medical Council."

(e) On 18^th February 2008 Mr. Lemm sent an email to Dr. Belal congratulating him on obtaining the position at Victoria North Clinic and stating

"So that we can proceed further, could you please provide me with three recent references (dated within last 12 months) as the clinic will need these to verify your status among your peers presently. This will also be required to obtain your registration with the MCNZ at a later date."

25. It was the evidence of Dr. Upsdell that on Monday 18^th February 2008 she became concerned. She was uneasy because there had been no discussion about the wages and she thought that Dr. Belal had accepted the position a little too readily. She carried out a Google search on Dr. Belal which very quickly revealed that there were conditions on his registration. Dr. Upsdell could not understand what they might be so she telephoned the GMC which confirmed that his registration was subject to conditions. The conditions had never been mentioned by Dr. Belal. She then sent an email to Dr. Belal to which she did not receive a reply. She had no further contact with him.
26. In cross examination Dr. Upsdell stated that she had trusted the recruiters to have done their homework before they submitted someone as a potential candidate. Before a doctor would be able to practise in New Zealand registration with the New Zealand Medical Council would be required. They are very strict and would require a letter of good standing from the GMC. She accepted that any offer of employment in New Zealand would be contingent upon obtaining admission to the New Zealand Medical List through the New Zealand Medical Council. In answer to questions put by Mr. Hockton on behalf of Dr. Belal she accepted that this was really no more than a preliminary provisional offer, that it could have been nothing more at that stage, and that it was conditional on "those other situations being sorted out to the satisfaction of everybody involved". She was referred to Mr. Lemm's request for three recent references and accepted that the offer of a job was really no more than a provisional arrangement subject to further matters being verified.
27. I have come to the clear conclusion that there was no binding contract.

(a) The question to be determined is one of objective intention i.e. it is necessary to determine on the basis of the objective evidence what the parties must be taken to have intended.

(b) It is possible here to find an agreement comprising an offer and acceptance. However the real question is as to the nature of that agreement.

(c) Any agreement would be subject to requirements of certainty. Here exchanges of emails and the telephone conversation or conversations appear to have led to agreement on a number of vital matters. Working hours and remuneration had been ascertained. Dr. Belal had indicated that he was available from May / June 2008 and that he was available "for long term duration". Dr. Upsdell's email of 17^th February 2008 to Pinnacle Group Limited indicates that Dr. Belal had agreed to a two year contract. However, Dr. Upsdell's email to Dr. Belal on 16^th February 2008 refers to the General Practitioner contract and job description. There was no evidence that those documents were ever sent to Dr. Belal. While it would have been possible for him to contract on terms which he had not seen that would be unusual given the importance of this contract to him. Overall this tends to support the view that there was no binding contract concluded at that stage.

(d) Any contract would have been subject to contingent conditions namely admission to the New Zealand Medical List, immigration approval and references to the satisfaction of the practice. The first two are matters for determination by third parties. As such they might be consistent with a binding contract from which the parties would be released if the public authority concerned did not grant the necessary consent. However, it is difficult to accommodate the third condition in this analysis. This is a condition which requires the subjective approval of the practice. The nature of the condition makes it much more likely that references to the satisfaction for the practice are conditions precedent to any binding contract.

(e) Dr. Upsdell's subjective understanding of the position cannot be determinative of the matter. Moreover, in her evidence on this matter she was responding to leading questions. However, her stated understanding was that this was no more than a preliminary provisional offer, conditional on various matters being sorted out to the satisfaction of everyone involved. There was to be no binding contract until these matters had been resolved to the satisfaction of Dr. Upsdell. This makes a great deal of sense in these circumstances. That is also the impression which is left by the objective evidence. That to my mind is inconsistent with any binding legal commitment at that stage.

28. I note that in the transcript of the evidence of Dr. Upsdell the following exchange appears

"Q: In any event to some extent this is all academic is it not because as you have explained to this Panel prior to Dr. Belal formally being offered a job with your practice he would have needed to have obtained full registration with the New Zealand Medical Council and satisfy you and the New Zealand Medical Council that there were no problems in relation to his registration?

A: At that point I would honoured my (inaudible) to the job but anybody applying to come to Australia or New Zealand would have been told by the recruiter that they would have to satisfy the Medical Council…" (12^th May 2011, 308H -309A).

It is not clear what Dr. Upsdell meant here. However, if she meant that she would have honoured the arrangement made with Dr. Belal if the necessary approvals were received it still does not establish a legal obligation to do so. Furthermore, this is difficult to reconcile with the requirement of satisfactory references.

29. Having regard to all these considerations I have come to the clear conclusion that there was no binding agreement entered into between Dr. Belal and Dr. Upsdell. Accordingly, in view of the basis on which the GMC put its case both below and on appeal, the finding of the Panel that Dr. Belal was in breach of Condition 9 is wrong and must be set aside.

Paragraph 20B

30. The Panel made the following findings of fact.

"Paragraph 20B has been found proved.

The Panel has borne in mind the relevant interim order conditions namely Condition 4 which states that

"You must inform the GMC if you apply for medical employment outside the UK."

The Panel has received evidence to show that you sent your curriculum vitae to recruitment agencies outside the United Kingdom. The Panel finds that condition 4 entailed an obligation upon you to inform the GMC at the time of application for medical employment. The Panel has noted the witness statement from Mark Elliot, GMC Investigation Officer, dated 14^th January 2011. He stated that "at no time did [you] inform the GMC that [you] intended to obtain or had obtained work outside the UK.""

31. The evidence of Dr. Belal before the Panel was that he knew that he had to tell the GMC. However it would be a lengthy process to apply and to register with the General Medical Council in New Zealand. "I did not get to the stage where I had to inform the New Zealand Medical Council or the UK Medical Council at that stage. It was a very early stage to talk about it, I thought." (Day 11/2H-3A).
32. On the appeal, while Mr. Hockton did not accept there had been a breach of Condition 20B he did not seek to argue to the contrary. Rather, his submission was that if there was a breach of Condition 20B it was a purely technical breach. He placed particular emphasis on the timing. He pointed out that the earliest contact with New Zealand was on 6^th February 2008 and that the GMC was aware of the application by 19^th February 2008. He submitted that the facts that Dr. Belal did not actually obtain a job and did not move to New Zealand make this a technical breach. He submitted that there was no contractual agreement and that it is difficult to say that there was an agreement in principle; it was not more than a provisional arrangement. He submitted that Dr. Belal's statement in his evidence that he considered that this was a very early stage at which to talk about informing the GMC is a reasonable explanation.
33. I am unable to accept these submissions. The conduct of Dr. Belal described above was a clear breach of Condition 20B. Dr. Belal accepted repeatedly in his evidence that he had applied for medical employment through the agencies. (Day 11/1-2). The fact that the GMC became aware of his application at a relatively early stage was entirely fortuitous, was due to the suspicions of Dr. Upsdell and was not brought about in any way by Dr. Belal. Furthermore, it was far from a technical breach. The purpose of the condition was to ensure that the GMC was aware in advance of any application for medical appointment outside the United Kingdom so that it would be able to notify the relevant authorities in the State concerned of the true position in relation to Dr. Belal's registration. Dr. Belal's conduct undermined the safeguard which the condition was intended to create. The Panel's finding of infringement in relation to Condition 20B was clearly correct.

Head 21

34. In April 2009 an agency acting on behalf of Dr. Belal submitted a personal data form signed by Dr. Belal to the Health Professionals Licensing Department of the Health Authority, Abu Dhabi. Under the heading "Relevant License(s)" an entry referred to Dr. Belal's annual registration in the United Kingdom and under the sub-heading "Status" appeared the word "Active".
35. The Panel made the following findings of fact.

"Paragraph 21:

On or about 26^th April 2009 you did not inform the Health Authority of Abu Dhabi that your UK Registration was suspended"

has been found proved.

The Panel has noted the section of the application, signed by you, and submitted to the Health Authority of Abu Dhabi on or around 26^th April 2009. You told the Panel that you were aware at this time that your registration had been suspended by the Interim Orders Panel. This documentation did not detail any issues with your registration with the GMC. On the contrary, it described your registration as "Active". Taking the plain sense meaning of the term, the Panel is satisfied that "Active" clearly implies that your registration is without restriction."

36. In this regard Mr. Hockton advanced three grounds of appeal.
37. First, he submitted that the personal data form was not admissible as evidence before the Panel. The General Medical Council (Fitness to Practise) Rules Order of Council 2004 ("the Rules") Rule 34 provides in relevant part:

"34 Evidence

(a) Subject to paragraph (2), the Committee or a Panel may admit any evidence they consider fair and relevant to the case before them, whether or not such evidence would be admissible in a court of law.

(b) Where evidence would not be admissible in criminal proceedings in England, the Committee or Panel shall not admit such evidence unless, on the advice of the Legal Assessor, they are satisfied that their duty of making due enquiry into the case before them makes its admission desirable…"

38. Both below and before me Mr. Hockton submitted that the document would not be admissible in criminal proceedings in England and that the Panel's duty of making due enquiry did make its admission desirable. In particular he submitted that its provenance was unknown, it was not produced by a witness and there was no evidence from the maker of the document. Furthermore he submitted that the document was, on its face, incomplete. He also drew attention to the manuscript passage which apparently had been added some time after it had been signed by Dr. Belal.
39. The Panel concluded that the document would not be admissible in criminal proceedings under section 117 Criminal Justice Act 2003 but nevertheless, having taken the advice of its legal advisor, concluded, in light of its duty to make due enquiry and to bear in mind the wider public interest, to admit the document under Rule 34(2).
40. Before me, Ms. White, on behalf of the GMC accepted that the document could not be admissible in criminal proceedings under section 117 Criminal Justice Act 2003. Nevertheless she submitted that the Panel was clearly correct to admit the document under Rule 34(2).
41. The GMC did not seek to adduce the personal data form as evidence of the truth of its contents. Rather, it was intended to adduce it to prove that a statement had been made in the document that the annual registration of Dr. Belal with the GMC was active. Nevertheless there was a hearsay difficulty because there was no witness or witness statement to adduce the document. In these circumstances I consider that the concession that the document could not be admissible in criminal proceedings under section 117 Criminal Justice Act 2003 was correctly made. It would not have been admissible because there would have been no evidence of the matters set out in section 117(2).
42. However, the Panel's decision to admit the document under Rule 34(2) was, in my view, clearly correct. The form was highly relevant to the very serious allegation in Head 21. The Panel was clearly entitled to conclude that its duty of enquiry and its overriding duty to protect the public made it desirable to admit the document in evidence. Furthermore, Dr. Belal was not prejudiced in any way by any uncertainty as to the provenance of the document. In the event Dr. Belal accepted in his evidence that he had signed the form after it had been completed by the agency. Its admission did not cause any unfairness to Dr. Belal.
43. Before leaving this first submission, I should also record that there was other evidence before the Panel that Dr. Belal had failed to inform the Health Authority of Abu Dhabi that his United Kingdom registration was suspended. It is to be found in an email of 26^th April 2009 from Dr. Kharusi of the Abu Dhabi Health Authority to the GMC Fitness to Practise Panel.

"Dr. Karem Belal has applied to the Health Authority of Abu Dhabi…to practise as a Consultant Accident and Emergency (sic). Upon verifying his GMC licence we found that he was suspended from 21^st January 2009 and that from the period of 27^th April 2007 to 21^st January 2009 his licence was renewed with conditions."

Dr. Kharusi stated that the Health Authority wished to enquire as to the reasons for his suspension and the imposition of conditions before deciding whether to license him in Abu Dhabi.

Contrary to the submission of Mr. Hockton, I am unable to accept that this email is consistent with Dr. Belal having provided the Health Authority with the information in relation to the conditions and his suspension. It is clear that this came to light as a result of the investigations of the Health Authority.

44. Secondly Mr. Hockton submits that the Panel failed to distinguish between the allegations in Head 20 in relation to New Zealand which turned on an alleged breach of a condition requiring notification and those in Head 21 in relation to Abu Dhabi where there was no condition requiring notification because by that time Dr. Belal had been suspended and the conditions no longer applied. It is correct that Head 21 is not concerned with a breach of condition. The charge is not formulated by reference to a breach of condition to notify. Furthermore, although the Panel in its findings concerning the allegations in Head 22 addressed Heads 20 and 21 together, there is nothing to suggest that the Panel misunderstood the position. Mr. Hockton then submits that in the absence of a condition requiring notification it is not clear what gives rise to the duty of disclosure. I find this a surprising submission. In my judgment such an obligation is to be found in the general duty of good faith owed by every member of the profession. However, should any further authority be required it is undoubtedly to be found in paragraph 56 and following (in particular paragraph 63) of the GMC publication entitled Good Medical Practice.
45. Thirdly Mr. Hockton submits that there was no basis for the Panel's finding in relation to the form.
46. Dr. Belal accepted in his evidence to the Panel that by April 2009 he was aware that his registration had been suspended by the GMC. He also gave evidence in relation to the completion of the form. In his evidence in chief he stated that he did not know who had completed the first page of the form (i.e. the page which describes his status as active) and he accepted that he had signed the declaration on the third page of the form. Dr. Belal gave evidence that he signed the form after it had been completed on his behalf. He did not insert the word "Active" under the heading "Status". He did not know what other options may have been available in the computerised form. He explained that it was his understanding that he was still registered with the GMC. The Health Authority in Abu Dhabi could access his registration to ask about his details. (Day 11/4-5). In cross examination he accepted that it was possible that if he told them in Abu Dhabi that his registration had been suspended in the United Kingdom it would affect his chances of getting the job. (D11/34G). He had read the form before he signed it and understood that he was declaring that the information was true and correct. He said that the form had not been written by him but by Al Noor Medical Company. "Active" meant that he had a registration in the United Kingdom. It was open to them to check his registration and he had authorised that. He denied that he was representing that he was free to work as a doctor in the United Kingdom. (D11/34-35).
47. Before me Mr. Hockton submitted that although Dr. Belal had signed the document it had not been created by him. There was no evidence of what the maker of the document meant by the word "Active". Dr. Belal had given evidence that he did not understand it to mean that he was free to practise in the United Kingdom without restriction. In these circumstances Mr. Hockton submitted that the Panel's conclusion was unreasonable.
48. I have come to the clear conclusion that when the word "Active" is considered in the context of this particular application form it does imply that registration is current and effective. Registration which has been suspended cannot sensibly be said to be "Active". I consider that the Panel was clearly correct in its conclusion that Dr. Belal did not inform the Health Authority of Abu Dhabi that his United Kingdom registration was suspended.

Head 22 misleading and dishonest conduct

49. Head 22 alleges that the acts and omissions in paragraphs 19, 20 and 21 were misleading and dishonest.
50. The Panel made the following findings of fact under Head 22.

"Paragraph 22A in relation to paragraphs 19A and 19B has been found proved.

You were aware of the conditions imposed and you had a duty as a registered medical practitioner to provide both Luton PCT and the GMC of information clearly relevant to your situation.

Paragraph 22B in relation to paragraphs 19A and 19B has been found not proved.

The Panel was satisfied that your actions and omissions would have been regarded as dishonest by the ordinary standards of reasonable honest people. However it was not satisfied that you must have been aware that your actions and omissions were dishonest by those standards.

Paragraph 22A in relation to paragraphs 20A, 20B and 21 has been found proved.

The Panel has noted the reasons given earlier in relation to these paragraphs. In all the circumstances, the Panel was satisfied that you deliberately omitted to inform relevant parties of appropriate information and that you intended to mislead your potential employers and your regulatory body.

Paragraph 22B in relation to paragraphs 20 and 21 has been found proved.

The Panel has borne in mind that at the relevant times you were seeking medical employment. The Panel took the view that, had you informed these parties of the relevant information at the relevant times, it might have made it more difficult for you to obtain employment. In the circumstances, the Panel has concluded that you sought deliberately to conceal this information from the relevant parties. The Panel was in no doubt that your actions and omissions would be regarded as dishonest by the standards of reasonable and honest people and it considered it is satisfied that you were aware that what you were doing would be regarded as dishonest by those standards."

51. These findings will be considered by addressing Heads 19, 20 and 21 in turn.

Head 19 - Luton

52. Dr. Belal had been included in the Luton PCT Medical Performance List since the 26^th September 2006. His evidence was that he had registered there in order to be able to do locum work for a friend who was a practitioner in Luton. He admitted that he had not informed either the PCT or the GMC of the relevant matters, as required by the conditions in the interim order, but contended that his failure was not deliberate. The Panel found under paragraph 19 that a breach was an objective fact and whether or not there was an intention on the part of the person committing that breach was irrelevant. Dr. Belal does not seek to challenge that finding.
53. The Panel found that the conduct under Head 19 was misleading but not dishonest. Dr. Belal now challenges the finding that it was misleading. Here Mr. Hockton relies on the finding of the Panel in its determination on impairment that it "accepted your explanation that you simply forgot you were on this List. That is why you did not take steps to inform the PCT or the GMC". That conclusion would clearly have been inconsistent with any finding of dishonesty. However the Panel did not make a finding of dishonesty in relation to this matter. Contrary to the submissions of Mr. Hockton, I am unable to accept that this finding is inconsistent with the conclusion that the conduct was misleading. Dr. Belal had a duty to provide both Luton PCT and the GMC with this information which was highly relevant to his situation. His failure to do so was clearly misleading.

Heads 20 and 21

54. On the appeal it is submitted on behalf of Dr. Belal that misleading and dishonest conduct were wrongly found proved in relation to the applications for work in New Zealand and Abu Dhabi. However Mr. Hockton's skeleton argument and his oral submissions do not advance any basis for this contention. Here Mr. Hockton has confined himself to his submission that the Panel wrongly assumed that the condition relating to disclosure of conditions to respective employers applied in relation to the Abu Dhabi application. I have already addressed this point earlier in this judgment.
55. I consider that the Panel was clearly correct in its findings that conduct under Heads 20 and 21 was dishonest and misleading for the reasons it gave. There was abundant evidence to support those conclusions. However for the reasons set out earlier in this judgment I have come to the conclusion that the finding of infringement under Head 20A must be set aside.

Misconduct and impairment

56. In the second stage of its decision the Panel considered misconduct and impairment. As Cranston J. pointed out in Cheatle v General Medical Council [2009] EWHC 645 (Admin), a Panel must here engage in a two step process.

"First, it must decide whether there has been misconduct, deficient professional performance or whether the other circumstances set out in the section are present. Then it must go on to determine whether, as a result, fitness to practise is impaired. Thus it may be that despite a doctor having been guilty of misconduct, for example, a Fitness to Practise Panel may decide that his or her fitness to practise is not impaired." (at paragraph 19).

57. At this stage of the Panel's ruling in the present case two streams merge: its findings of fact in relation to professional performance and in relation to conduct. The Panel's findings in relation to impairment by virtue of defective professional performance are not disputed on this appeal. However, its findings in relation to impairment by virtue of misconduct are.
58. Here the Panel also considered its findings of fact in other areas.

"1. Your debts to your previous practice partners

The Panel has noted that you have now acknowledged these debts and have apologised to your partners. You have offered to pay the money back when you are in a financial position to do so. In the light of the evidence presented to it, the Panel has found that your actions and omissions in this regard amount to misconduct. However, taken in isolation, the Panel has determined that your misconduct in relation to these matters was not so serious as to amount to impairment.

2. Your failure to provide details of your ongoing hours and posts of work to Gwent Healthcare NHS Trust (the Trust).

The Panel considered this to be a formal enquiry from an executive officer of a Health Board relating to potential issues of patient safety and clinical governance. It has already found that you had a professional obligation to provide the details requested and that your conduct in respect of these matters was evasive. In the light of the evidence presented to it, the Panel has again found that your actions and omissions in this regard amount to misconduct, although the Panel did not find this misconduct to be misleading or dishonest. Taken in isolation, the Panel has determined that your misconduct in relation to these matters was not so serious as to amount to impairment.

3. Your misleading conduct in relation to Luton PCT Medical Performer's List

The Panel has accepted your explanation that you simply forgot that you were on this List and that this is the reason why you did not take steps to inform the PCT or the GMC, as required by your interim order conditions. Nevertheless, the Panel has found your misleading conduct in this regard amounted to misconduct. However, taken in isolation, the Panel has determined that your misconduct in relation to these matters was not so serious as to amount to impairment."

59. Mr. Hockton made the general point that these passages and in particular the final sentence of each section established that the Panel took the gravity of the conduct into account in determining impairment as opposed to misconduct and that it therefore applied a lower test of misconduct which is required to be serious misconduct. I am unable to accept this submission for a number of reasons. It is clearly necessary to consider the gravity of the conduct both of the stage of assessing misconduct and that of assessing impairment. There is nothing in the passages relied on by Mr. Hockton to suggest that the Panel failed to take account of the seriousness of the conduct in assessing whether there was misconduct or that it applied a lower test in that regard. Furthermore, the Panel quite correctly went on to address the gravity of the misconduct when it considered the further issue of impairment. It is well established that the fact that there is misconduct does not necessarily mean that a doctor's fitness to practise is impaired. The gravity of that misconduct has to be assessed in determining impairment. (See, for example, Cheatle v General Medical Council per Cranston J. at para 22).
60. Mr. Hockton then submitted that Dr. Belal's conduct in relation to the debts and in relation to his failure to provide details of ongoing hours was incapable of constituting misconduct. These points were not fully argued before me. During the argument I made clear to Mr. Hockton that if he wished to pursue these points he would have to develop them fully and take me to the detail of the conduct concerned. In the event Mr. Hockton declined to do so and did not take me to any material to make good these submissions. Accordingly I am not persuaded that the Panel was wrong in concluding that these matters constituted misconduct.
61. In any event, it is apparent from the Determination in a passage quoted later in this judgment, that these matters played no part in the reasoning which led the Panel to conclude that Dr. Belal's fitness to practise was impaired. That conclusion rested entirely on the Panel's findings of misleading and dishonest conduct.
62. With regard to the Panel's treatment of its findings under Head 19 in relation to the Luton PCT Mr. Hockton submits that, the Panel having accepted that the conduct was inadvertent, it could only find misconduct by misdirecting itself as to that concept. Here again he submits that the conduct was incapable of constituting misconduct.
63. In this regard I have found of assistance the observations of Jackson J, as he then was, in Calhaem v General Medical Council [2007] EWHC 2606 (Admin): [2008] L.S. Law Med 26:

"(1) Mere negligence does not constitute "misconduct" within the meaning of section 35C(2)(a) of the Medical Act 1983. Nevertheless, and depending upon the circumstances, negligent acts or omissions which are particularly serious may amount to "misconduct".

(2) A single negligent act or omission is less likely to cross the threshold of "misconduct" than multiple acts or omissions. Nevertheless and depending upon the circumstances, a single negligent act or omission, if particularly grave, could be characterised as "misconduct"."

64. Here the Panel was concerned with Dr. Belal's failure to inform the GMC of his inclusion in the Luton PCT Medical Performer's List and his failure to inform Luton PCT that his registration was subject to interim conditions. The Panel did not find that this failure was inadvertent. In making its finding it stated that the breach was an objective fact and whether or not there was an intention on the part of the person committing that breach was irrelevant. The obligation arose from the conditions imposed by the Interim Orders Panel and, as the Panel found at page 8 of its first determination Dr. Belal was aware of the conditions and had a duty as a registered medical practitioner to provide Luton PCT and the GMC with information which was clearly relevant to his situation. The Panel was, in my view, right to attach considerable importance to this obligation and to view Dr. Belal's failure to discharge it as a serious matter. In all the circumstances, I am not persuaded that the Panel's conclusion that the failure constituted misconduct was wrong.
65. In its determination on impairment the Panel went on to address under a fourth heading

"4. Your dishonest conduct in relation to Dr. Raewyn Upsdell, to the GMC, and to the Health Authority of Abu Dhabi."

Here it referred to the fact that Dr. Belal had deliberately omitted to inform the relevant parties of appropriate information with the intention of misleading potential employers when seeking employment and misleading regulatory bodies. He had sought to deliberately to conceal the information. The Panel was in no doubt that this conduct was misleading and dishonest and related to potential pecuniary gain. The Panel concluded that these misleading and dishonest acts and omissions amounted to misconduct. I did not understand Mr. Hockton to challenge this conclusion.

66. The Panel then went on to consider whether Dr. Belal's misconduct was so serious that his fitness to practise was impaired.

"The Panel has already found that you blatantly and repeatedly breached the GMC's guidance in relation to standards of conduct and behaviour and that your behaviour fell seriously short of the standards of conduct that the public and patients are entitled to expect from all registered medical practitioners and that your conduct amounted to serious misconduct.

In reaching its decision on impairment, the Panel has considered the issues of remediation, likely repetition and insight.

In the Panel's view dishonesty, by its very nature, is not easily remediable. No tangible objective evidence has been placed before this Panel regarding any efforts you have made towards remediation of your deficiencies. Furthermore, the Panel has borne in mind that you have not, at any time, acknowledged that your actions were misleading and dishonest. The Panel considers such actions demonstrate your lack of insight into your misconduct.

Having considered that nature of your dishonesty and the lack of remediation and insight, the Panel could not be satisfied that there is no risk of repetition of such behaviour in the future.

The Panel has concluded that by your misleading and dishonest actions you have brought the profession into disrepute, have breached the fundamental tenets of the profession and that your integrity has been impugned.

The Panel is of the view that behaviour such as yours would be regarded as deplorable by fellow practitioners and by the public.

Accordingly, the Panel has determined that your fitness to practise is currently impaired by reason of your misconduct."

67. The following points emerge from this passage.

(a) Despite the reference to repeated breaches of the GMC's guidance, it is essentially on the basis of its findings of misleading and dishonest conduct that the Panel found Dr. Belal's fitness to practise impaired.

(b) Considered in isolation this passage may be read as including the conduct or omissions relating to Dr. Belal's inclusion in the Luton PCT Performers List, which was found to be misleading but not dishonest. However, the scheme of the Determination presents this reasoning under a heading relating to the New Zealand and Abu Dhabi matters. The Panel had already concluded at the end of section 3 that the Luton matter, taken in isolation, was not so serious as to amount to impairment. As a result, I consider that in the passage quoted above the Panel came to its conclusion on impairment on the basis of the New Zealand and Abu Dhabi matters.

(c) In any event, even if the Panel's conclusions in relation to the Luton matter were taken into account by it in its determination of impairment or fitness to practise, it is very much a subordinate matter (there being no finding of dishonesty) and it is clear from the terms in which it expressed its reasoning that the Panel would inevitably have come to the same conclusion on impairment on the basis of the New Zealand and Abu Dhabi matters. I did not understand Mr. Hockton to argue to the contrary.

68. Mr. Hockton did not suggest that the Panel was not entitled to come to its conclusion on impairment on the basis of its original findings of fact in relation to Heads 20 and 21. However, it is necessary to consider the impact of my conclusion in relation to Head 20A on the Panel's finding on impairment in relation to the New Zealand and Abu Dhabi matters. The Panel's conclusion on impairment here was based on the cumulative effect of its findings on 20A, 20B and 21. The question for consideration now is whether the Panel would inevitably have come to the same conclusion in the absence of 20A. Mr. Hockton submits that it is very difficult to disentangle one part of this cumulative consideration and to say that the rest still stands. In particular, he adds, this is so because the finding of breach of conditions in 20A (failing to inform Dr. Upsdell that his registration was subject to interim conditions) is arguably more serious than that in 21 (the Abu Dhabi matter) because it involves breach of a condition imposed by a regulatory body. He submits that it is difficult for the finding of impairment on grounds of misconduct to stand if one of the key elements falls. Accordingly he invites me to quash the entire finding of impairment for misconduct.
69. Once again, I am unable to accept these submissions. The reasoning of the Panel and its consideration of impairment flowing from the New Zealand and Abu Dhabi matters is not diminished at all by the removal of the strand relating to Dr. Upsdell. Each of the three infringements found under Heads 20 and 21 was, in the view of the Panel, very grave misconduct which was both misleading and dishonest. The Panel condemned each of these matters in the most trenchant terms. I am unable to see how it could have failed to come to the same conclusion in relation to impairment even when the infringement alleged in Head 20A is removed from consideration.

Sanction

70. Having determined that Dr. Belal's fitness to practise was impaired by reason of misconduct and deficient professional performance the Panel went on to consider what sanction if any should be imposed. In doing so it took full account of the GMC's Indicative Sanctions Guidance. It stated that it had well in mind the principle of proportionality and that the purpose of a sanction is not to be punitive but to protect patients in the public interest. The Panel considered that in view of the serious nature of its findings on impairment in respect of both misconduct and deficient professional performance it would be neither proportionate nor in the public interest to take no action. Whilst the Panel considered that it could potentially formulate conditions which would protect patients in respect of Dr. Belal's deficient professional performance, it considered that no conditions could be formulated to address the misleading and dishonest misconduct which had been proved. The Panel repeated its finding that Dr. Belal intended to mislead potential employers and the regulatory body. Misconduct was motivated by the possibility of pecuniary gain. Furthermore, it found that Dr. Belal had not acknowledged that his actions were misleading and dishonest. In the course of his evidence he had made statements which were not credible and had offered inconsistent explanations for his conduct. There was no evidence to suggest that he had recognised its seriousness or had made any attempts to remedy his failings. He had shown a complete lack of insight and the Panel could not be satisfied that there would not be a repetition of such behaviour in the future. It therefore concluded that Dr. Belal's behaviour was fundamentally incompatible with his continuing to be a registered medical practitioner. The Panel concluded that his misconduct aggravated by his deficient professional performance was fundamentally incompatible with his continuing to be a registered medical practitioner and accordingly it decided to erase his name from the Medical Register. This was the only sanction that would protect patients, maintain public confidence in the profession and uphold and declare proper standards of conduct and behaviour.
71. On the appeal Mr. Hockton submitted that the decision to erase was disproportionate and should be set aside.

(a) He relied on a number of matters relating to the professional performance of Dr. Belal. He pointed to the evidence of remediability in relation to his professional performance and the insight he had shown in accepting the conclusion of the performance assessment. He submitted that the performance assessment contained a significant quantity of positive material and that some of the criticism was shown to be overly negative. He submitted that there had been no complaint by any patient of Dr. Belal and that there was no evidence that any patient of his had suffered harm. In my judgment these submissions fail to take account of the fact that deficient professional performance was a subsidiary consideration in the Panel's reasoning on sanction. The Panel made clear that Dr. Belal's deficient professional performance would not of itself have required or justified erasure. However its decision on sanction was expressly founded on misconduct.

(b) It was submitted that there was no finding of dishonesty in the workplace and that the dishonest conduct related solely to failure to disclose what action had been taken by the Interim Orders Panel. To my mind there is no mitigation available here. The measures set in place by the Interim Orders Panel were necessary for the protection of the public and Dr. Belal's flagrant disregard of this consideration was rightly condemned by the Panel.

(c) Mr. Hockton complains of "the artificial and erroneous suggestion made by the Panel that the dishonesty related to pecuniary gain". I consider that the evidence showed very clearly that Dr. Belal's motive in relation to the New Zealand and Abu Dhabi matters was one of personal financial gain.

(d) Mr. Hockton points to the delay in the proceedings and the prolonged periods of conditional registration or suspension. He also points to the collapse of the doctor's marriage, his poor health and severe financial difficulties. I am willing to accept there may be substantial personal mitigation available in Dr. Belal's case. However these matters carry little weight in the present context where the Panel has a duty to protect the public.

(e) The fact that the Interim Orders Panel did not immediately suspend Dr. Belal when it first learned of the alleged breaches in relation to the New Zealand and Abu Dhabi matters does not, in my judgment, assist Dr. Belal.

72. I am not persuaded by any of these submissions on behalf of Dr. Belal.
73. It is, however, necessary to consider the effect on sanction of the removal of the Panel's finding under Head 20A. To my mind this has a very limited impact on sanction. Two findings of very serious and dishonest misconduct remain. The reasoning of the Panel leaves me in no doubt that it would inevitably have imposed the same sanction of erasure had it been concerned only with Heads 20B and 21.

Conclusion

74. I will hear further submissions on the appropriate terms of the order.