England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		14 May 2013

1. HIS HONOUR JUDGE McKENNA:

INTRODUCTION

2. The appellant, Dr Mohammed Sabji Sultan, was a registered medical practitioner at the relevant time and remains so until this appeal is determined. The respondent General Medical Council is the regulatory body for doctors pursuant to the Medical Act 1983.
3. As a result of admissions made by the appellant to the respondent's Fitness to Practise Panel on 6 July 2012, that Panel determined that the appellant's fitness to practise was impaired by reason of (a) misconduct and (b) deficient professional performance. As a result of these findings the Panel went on to consider the question of sanction. It concluded that the appellant's erasure from the Medical Register was a proportionate sanction and duly erased his name from the register.
4. The appellant now seeks to challenge this decision in accordance with section 40 of the Medical Act 1983 and CPR 52.11(3). The thrust of the appeal is that the sanction was wrong, unjust and disproportionate, and that, had the Panel approached the question of sanction fairly and properly, it would not have come to the conclusion that it was necessary to strike the claimant off the Medical Register. In respect of the misconduct, it is said that there were powerful personal mitigating circumstances which militate against the sanction of erasure, and, in any event, it is said that the trigger for the erasure was not this breach, but the second matter, namely the deficiencies in Dr Sultan's professional performance. Here what is said is that, given the appellant's insight and the possibility of training, as advocated on Dr Sultan's behalf by Dr Tahir before the Panel, the Panel did not give full consideration to the possibility of suspension as a proportionate sanction. This could have afforded the appellant the opportunity to address issues of remediation and insight at a future review hearing, without necessarily closing the door on an otherwise long and unblemished career.

BACKGROUND

5. The background to this appeal is that Dr Sultan worked as a general practitioner from premises in Mitcham Road in Tooting. From 1999 he was the sole partner and then the senior partner at the practice from 2008 with a Dr Ali. In June 2009 Dr Sultan was arranging for the practice to move to another address in the same road. During the course of the move it became clear that the new premises did not have sufficient space for some 70 bags of patient records and other documents stored in the cellar of the old premises. Dr Sultan therefore instructed a Mr Gallon to take the books to Mr Gallon's home and there to burn them. Mr Gallon burnt some of them, but the remainder were still outside his house some weeks later when they were seen by a journalist from a local newspaper, which published a story about the matter on 3 August 2009 that included the following:

"Hundreds of highly confidential medical files, including a parent's plea for help for her mentally ill daughter, were found dumped in a nurse's backyard."

Representatives from the local NHS Trust went to Mr Gallon's house and discovered that there were some 63 bags of documents containing confidential patient records, patient referral letters, A&E records, patient test results and blank prescription pads. The Trust removed the bags and placed them in secure storage. The bags' contents were subsequently analysed and it was discovered that a significant amount of information from the paper records had not been scanned on to the practice's EMIS system. The Trust commissioned an investigation into the matter by Nina Murphy Associates, which identified it as a "serious untoward incident".

6. Dr Sultan appeared before the General Medical Council's Interim Orders Panel on 14 October 2009 in related to some related and some distinct matters, and his registration was suspended. Dr Sultan did not challenge that suspension and on 9 April 2010 the Trust removed Dr Sultan's GP contract. Dr Sultan unsuccessfully challenged this decision in September 2010, and the Trust held a Performance Panel hearing on 18 October 2010 and Dr Sultan was removed from the Performance List.
7. The GMC also arranged for a performance assessment of Dr Sultan to take place in October 2010 and March 2011. That performance assessment was led by a Dr Clarke. The report from the assessors begins at page 303 in my bundle and at page 362 are to be found its summary and recommendations:

"The overall assessments of each category of individual categories of GMP were as follows:

Unacceptable,

Assessment, Investigation, Treatment, Records, Other Good Clinical Care Colleagues, Patients,

Cause for concern:

Maintaining Good Medical Practice

No judgment:

Teaching."

In terms of the test of competence, the following were very low scores in all elements:

"Knowledge Test score 33%, minimum standard 66%

Simulated surgery 37.25%, minimum standard 50%.

OSCE score, below all other peers in 12 stations

The Assessment Team conclude that there is such a huge gap between Dr Sultan's current level of clinical knowledge and skills and that needed to reach a standard necessary for independent medical practice, that despite the clear enthusiasm Dr Sultan has for his educational activities, a realistic perspective is that this is not remediable."

8. Under the heading "ASSESSMENT TEAM'S FORMAL OPINION" the following appears:

"Dr Sultan should cease practice. There is a very large gap between his current level of performance and that required for independent general practice, it is unrealistic to recommend he undertakes the amount of retraining needed to acquire the knowledge and skills necessary to return to independent general practice."

(That was the unanimous decision of the Assessment Team.)

9. As a result of these matters, Dr Sultan attended the Fitness to Practise Panel hearing on 2 to 6 July 2012 to face the following allegation:

"That being registered under the Medical Act 1983 (as amended):

"1. In or around June 2009, you failed to

a. securely store personal and clinical related patient data

...

b. securely dispose of personal and clinical related patient data,

...

c. ensure that some clinical related and/or patient identifiable data relating to 1a and 1b was entered onto the EMIS system at your Practice;

...

2. In an assessment of your professional performance carried out by the General Medical Council on 27-29 October 2010 and 2 March 2011, your professional performance was

a. unacceptable in the areas set out in Schedule A

Schedule A

i. assessment of patients' condition,

ii. providing or arranging investigations,

iii. providing or arranging treatment,

iv. record keeping,

v. other good clinical care,

vi. relationships with patients,

vii. working with colleagues.

b. a cause for concern in the area set out in Schedule B;

Schedule B:

Maintaining good medical practice.

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

a. your misconduct

b. your deficient professional performance."

10. To his credit Dr Sultan admitted misconduct and deficient professional performance and therefore the only issues before the Panel were whether his fitness to practise was impaired by reason of the misconduct and/or deficient professional performance, and of course sanction.
11. The Panel read evidence from Mr Gallon and Ms Sibandze and heard from Dr Clarke, who, as I have recorded, led the Performance Assessment Team as well as hearing evidence from Dr Sultan and Dr Tahir. The Panel announced its determination on impairment on 4 July 2012, and it concluded that Dr Sultan's fitness to practise was impaired.
12. In the transcript for day 3 the determination starts at page 1 and includes the following beginning at D3/5D:

"Taken individually and collectively, the Panel found that the heads of charges in relation to your significant breaches of confidentiality were egregious because of the level of its confidentiality, the volume of data involved, and the period during which it was left insecure. The Panel found that this flagrant disregard for patient confidentiality breached one of the fundamental tenets of the profession. The Panel notes that the serious untoward incident attracted adverse media attention which has undermined the public's confidence in the profession and brought the profession into disrepute.

The Panel has noted the difficult circumstances under which you were practising medicine at this time. However, the Panel noted that you did not request assistance from the Trust or take time off to attend to your personal affairs. The Panel considers this demonstrates a further lack of insight with regard to patient care. Taking into account all facts admitted and found proved the Panel has determined that your actions amount to serious misconduct.

In relation to your deficient professional performance, under each of the seven heads in Schedule A, the Panel noted that there were instances in which your performance was found to be acceptable, but there were several areas where it was not. The Panel is satisfied that the performance assessment was a fair representative sample of your practice. The Panel has noted that between your suspension in April 2009 and the performance assessment you had undertaken a considerable amount of learning activity. Despite this, the Assessment team found that your professional performance had been deficient and that you were not fit to practise and should cease practise. Taking into account all facts admitted and found proved and the conclusions of the Assessment team, the Panel finds that your professional performance is deficient.

In the circumstances, the Panel has determined that your fitness to practise is impaired by reason of your misconduct and deficient professional performance, pursuant to Section 35C(2)(a) of the Medical Act 1983, as amended."

As I think I have recorded, that determination is not challenged in this appeal.

13. Having then heard from Dr Tahir, and from Dr Sultan himself, the Panel heard submissions on the issue of sanction and announced the decision (the subject of this appeal) to erase Dr Sultan from the register on 6 July 2012 (that is day 5 of the transcript where the determination begins at page 1 and includes the following commencing at D5/3F):

"The decision as to the appropriate sanction to impose, if any, in this case is a matter for this Panel exercising its own judgement.

In reaching its decision, the Panel has taken account of the Indicative Sanctions Guidance. It has borne in mind that the purpose of any sanction is not to be punitive, but to protect patients and the wider public interest, although it may have a punitive effect.

Throughout its deliberations, the Panel has applied the principle of proportionality, balancing your interests with the public interest. The public interest includes, amongst other things, the protection of patients, the maintenance of public confidence in the profession, and the declaring and upholding proper standards of conduct and behaviour.

The Panel has already given a detailed determination on impairment and it has taken those matters into account during its deliberations on sanction."

14. It then records the evidence given by Dr Tahir and at D5/5C continues as follows:

"In coming to its decision as to the appropriate sanction, if any, to impose in your case, the Panel first considered whether to conclude the case by taking no action. The Panel determined that in view of the serious nature of the Panel's findings on impairment, it would be neither sufficient, proportionate nor in the public interest, to conclude this case by taking no action.

The Panel next considered whether it would be sufficient to impose conditions on your registration. It has borne in mind that any conditions imposed would need to be appropriate, proportionate, workable and measurable. The Indicative Sanctions Guidance at paragraphs 56 to 62 (April 2009, revised August 2009)

State:

..."

15. It then quotes from those Indicative Sanctions Guidance and continues at D5/7D:

"The Panel found that, due to your professional deficiencies identified by the Assessment team, to ensure patient safety, your work would need to be directly supervised. The Panel found that no workable conditions could be devised that would protect your patients, the public interest and maintain public confidence in the medical profession. The Panel has, therefore, determined that it would not be sufficient to direct the imposition of conditions on your registration.

The Panel then went on to consider whether suspending your registration would be appropriate and proportionate. The Panel has noted paragraphs 69 and 70 of the ISG, which states:

'Suspension has a deterrent effect and can be used to send out a signal to the doctor, the profession and public about what is regarded as behaviour unbefitting a registered medical practitioner.'

and

'suspension is also likely to be appropriate in a case of deficient performance in which the doctor currently poses a risk of harm to patients but where there is evidence that he/she has gained insight into the deficiencies and has the potential to be rehabilitated if prepared to undergo a rehabilitation programme...'

Paragraph 75 states:

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

- A serious breach of Good Medical Practice where the misconduct is not fundamentally incompatible with continued registration and where therefore complete removal from the register would not be in the public interest, but which is so serious that any sanction lower than a suspension would not be sufficient to serve the need to protect the public interest.

- In cases involving deficient performance where there is a risk to patient safety if the doctor's registration were not suspended and where the doctor demonstrates potential for remediation or retraining.

- ...

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

...

...'

Your aspirations to practise medicine in the future are beyond doubt. The Panel is concerned about your capability to practise medicine safely in the light of your admitted misconduct in failing to recognise the dangers of breaching patient confidentiality, and your admitted deficient professional performance.

The Panel is required to assess your capability to practise in the future in the light of these concerns and in the light of your aspirations, expressed as they were in evidence by your declaring your wish, 'to die a martyr, not a coward'. The Panel does not, of course, interpret those words literally; rather it views the expression as a measure of the passion you hold to maintain your registration and to continue to help others in your capacity as a doctor.

The more difficult, therefore, is the reconciliation of your aspirations with the overwhelming evidence of your present and past deficient performance as a clinician measured by the Performance assessment and your admitted breach of confidentiality as demonstrated by your reckless disposing of patient records. The Panel notes that your deficiencies cover a broad spectrum of required skills.

Your evidence was tested in cross-examination by Mr Atherton, for the GMC, and was further explored in some detail by questions put to you by the Panel. It took little comfort from your admissions since they were not supported by your recognising the depth of the gaps in your essential knowledge, the breadth of the area over which your deficiencies were exposed, and the unfocused attempts to improve you have taken so far.

The Panel thus finds that you are significantly lacking in sufficient insight into your situation so that it is unable to have any confidence that your aspirations are realistic. To say that you have, 'a mountain to climb' falls a long way short of your recognising the enormity of the task you face and the difficulties you will encounter in your effecting an improvement that will render you safe to return to unrestricted practice.

Dr [Tahir] gave evidence of his expertise in retraining under-achieving junior doctors. The Panel could not fail to be impressed by his enthusiasm, though it notes that this enthusiasm was tempered by his acknowledging that, never before, had he been faced with the task of assisting a doctor with your many years of practice and, at the same time, your level of deficient performance. Dr [Tahir] further acknowledged that it would be impracticable to retrain you adequately, were your registration to remain suspended.

In considering whether his willingness to retrain you and to help you recover your skills was matched by his ability to provide the required input and your ability to deliver good and positive results to repay his efforts, the Panel looked very closely at his evidence and his motivation. No one can deny that his altruism is both genuine and sincere as its provenance lies in his religious belief that it is his duty to do good and to help others. This is what he told the Panel and the Panel accepts it. Neither can it be said that the proposal Dr [Tahir] put to the Panel had not been carefully thought out, worked through or discussed fully with you.

The Panel draws the inference that Dr [Tahir's] enthusiasm has, in no small measure, fed your aspirations such that your judgment as to your own capabilities is clouded and defective. Looking at the matter objectively and independently, the Panel has determined that, as a matter of practicality, it is unrealistic to expect Dr [Tahir] to be able to deliver the level of support for the duration he regards as necessary.

The Panel has therefore determined that it would be neither appropriate nor proportionate to suspend your registration. It follows then that you must be erased."

16. The Panel then quoted paragraphs 77 and 82 of the Guidance and continues as follows at D5/11C:

"Balancing all these factors, the Panel has determined that your misconduct and deficient professional performance are fundamentally incompatible with your continuing to practise medicine. The Panel is of the view that the public interest requires that it be made clear that your behaviour, as detailed previously, is unacceptable in a member of the medical profession.

In the light of all the evidence presented to it, the Panel is satisfied that erasure is a proportionate sanction in your case. Accordingly, the Panel has determined to direct that your name be erased from the Medical Register."

17. The Panel went on to make an order for immediate suspension, which was not challenged.

The Law

18. Section 1(1A) of the Medical Act 1983 is in these terms:

"(1A) The main objective of the General Council in exercising their functions is to protect, promote and maintain the health and safety of the public."

19. Section 35D(1) is in these terms:

"(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.

(3) Where the Panel find that the person's fitness to practise is not impaired they may nevertheless give him a warning regarding his future conduct or performance."

20. In determining the appropriate sanction the Panel must have regard to the Indicative Sanctions Guidance. The applicable guidelines in this case are the Indicative Sanctions Guidance April 2009 revised in August 2009. I was referred to a number of paragraphs in that Guidance by counsel for the appellant, in particular the following:

"Proportionality

"21. In deciding what sanction, if any, to impose the panel should have regard to the principle of proportionality, weighing the interests of the public with those of the practitioner. The panel should consider the sanctions available starting with the least restrictive.

...

23. The panel must keep the factors set out above at the forefront of their mind when considering the appropriate sanction to impose on a doctor's registration. Whilst there may be a public interest in enabling a doctor's return to safe practice, and panellists should facilitate this where appropriate in the decisions they reach, they should bear in mind that the protection of patients and the wider public interest (i.e. maintenance of public confidence in the profession and declaring and upholding proper standards of conduct and behaviour) is their primary concern.

...

25. In any case before them, the panel will need to have due regard to any evidence presented by way of mitigation by the doctor. Mitigation might be considered in two categories:

a. Evidence of the doctor's understanding of the problem, and his/her attempts to address it. This could include admission of the facts relating to the case, any apologies by the doctor to the complainant/person in question (see also paragraphs 32 - 37 below), his/her efforts to prevent such behaviour recurring or efforts made to correct any deficiencies in performance;

and

b. Evidence of the doctor's overall adherence to important principles of good practice (i.e. keeping up to date, working within his/her area of competence etc...Mitigation could also relate to the circumstances leading up to the incidents as well as the character and previous history of the doctor. This could also include evidence that the doctor has not previously had a finding made against him or her by a previous panel or by any of the Council's previous committees.

26. The panel should also take into account matters of personal and professional mitigation which may be advanced such as testimonials, personal hardship and work related stress. Without purporting in any way to be exhaustive, other factors might include matters such as lapse of time since an incident occurred, inexperience or a lack of training and supervision at work. Features such as these should be considered and balanced carefully against the central aim of sanctions, that is the protection of

the public and the maintenance of standards and public confidence in the profession.

...

69. Suspension has a deterrent effect and can be used to send out a signal to the doctor, the profession and public about what is regarded as behaviour unbefitting a registered medical practitioner. Suspension from the register also has a punitive effect, in that it prevents the doctor from practising (and therefore from earning a living as a doctor) during the period of suspension. Suspension will be an appropriate response to misconduct which is sufficiently serious that action is required in order to protect patients and maintain public confidence in the profession. However, a period of suspension will be appropriate for conduct that falls short of being fundamentally incompatible with continued registration and for which erasure is more likely to be the appropriate response (namely conduct so serious that the panel considers that the doctor should not practise again either for public safety reasons or in order to protect the reputation of the profession). This may be the case, for example, where there may have been acknowledgement of fault and where the panel is satisfied that the behaviour or incident is unlikely to be repeated. The panel may wish to see evidence that the doctor has taken steps to mitigate his/her actions ...

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

21. The leading case in this area is Raschid v the General Medical Council and Fatnani v the General Medical Council [2007] 1 WLR 1460, a decision of the Court of Appeal where the judgment was delivered by Laws LJ, with whom Chadwick and Peter Gibson LJJ agreed, a case in which the Court of Appeal overturned decisions of Collins J in which he had substituted different sanctions from those imposed by the General Medical Council's Fitness to Practise Panel.

21. Laws LJ identified two strands: one differentiating the function of the Panel in imposing sanctions from that of a court imposing retributive punishment, and the other emphasising the special expertise of the Panel or Committee to make the required judgment. At paragraph 17 the judgment continues as follows:

"17. The first of these strands may be gleaned from the Privy Council decision in Gupta v the GMC [2002] 1 WLR 169, 1702 at paragraph 21 in the judgment of their Lordships delivered by Lord Rodger of Earlsferry:

'It has frequently been observed that, where professional discipline is at stake, the relevant committee is not concerned exclusively, or even primarily, with the punishment of the practitioner concerned. Their Lordships refer, for instance, to the judgment of Sir Thomas Bingham MR in Bolton v Law Society [1994] I WLR 512, 517-519 where his Lordship set out the general approach that has to be adopted. In particular he pointed out that, since the professional body is not primarily concerned with matters of punishment, considerations which would normally weigh in mitigation of punishment have less effect on the exercise of this kind of jurisdiction. And he observed that it can never be an objection to an order for suspension that the practitioner may be unable to re establish his practice when the period has passed. That consequence may be deeply unfortunate for the individual concerned but it does not make the order for suspension wrong if it is otherwise right. Sir Thomas Bingham MR concluded, at p 519: 'The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is a part of the price.' Mutatis mutandis the same approach falls to be applied in considering the sanction of erasure imposed by the committee in this case.'

18. The Panel then is centrally concerned with the reputation or standing of the profession rather than the punishment of the doctor. This as it seems to me engages the second strand to which I have referred. In Marinovitch v GMC [2002] UKPC 36 Lord Hope of Craighead giving the judgment of the board said ...

'28. In the appellant's case the effect of the committee's order is that his erasure is for life but it has been said many times that the Professional Conduct Committee is the body which is best equipped to determine questions as to the sanction that should be imposed in the public interest for serious professional misconduct. This is because the assessment of the seriousness of the misconduct is essentially a matter for the committee in the light of its experience. It is the body which is best qualified to judge what measures are required to maintain the standards and reputation of the profession.

29. That is not to say that their lordships may not intervene if there are good grounds for doing so. But in this case their lordships are satisfied that there are no such grounds. This is a case of such a grave nature that the finding that the appellant was unfit to practice was inevitable. The committee was entitled to give greater weight to the public interest and to the need to maintain public confidence in the profession than to the consequences to the appellant of the imposition of the penalty. Their lordships are quite unable to say that the sanction of erasure which the committee decided to impose in this case while undoubtedly severe was wrong or unjustified.'"

At paragraph 21 Laws LJ went on as follows:

"21. Now I may return to the decisions of Collins J. In my judgment the test which he applied, namely whether the decision of the Panel was clearly wrong, is with respect not helpful or adequate, at least unless it is very clearly understood in the context of the two principles or strands, which I have described, which emerge from the Privy Council cases. Although Collins J in both of these cases acknowledged in one way or another the need for a degree of deference to the Panel -- see Raschid paragraph 42, Fatnani paragraph 22 -- still the exercise he undertook came very close, if it did not constitute, an exercise in re-sentencing. His view in Raschid (paragraph 25) that Dr Raschid was "trying to maintain a doctor/patient relationship" was a view of the case expressly rejected by the Panel itself -- see page 193 of our bundle. In fact I should notice that Dr Raschid submitted to us today that he never made that assertion. Moreover the judge's approach to the fact that Dr Raschid has found it impossible to obtain fresh employment is inconsistent with Gupta (approving, in the passage I have cited, the judgment of the then Master of the Rolls in Bolton v the Law Society). I do not consider that Dr Raschid's specific submissions about the unusual nature of his own career affect that conclusion."

Finally at paragraph 26 he said as follows:

"26. I acknowledge without cavil that Collins J's judgments are careful and humane. But I have to say that they do not in my view remotely offer sufficient recognition of the two principles which are especially important in this jurisdiction: the preservation of public confidence in the profession and the need in consequence to give special place to the judgment of the specialist tribunal. Applying these principles I am driven to conclude that there was not in either of these cases any proper basis established for overturning the sanctions set by the Fitness to Practise Panel."

(I observe that it is submitted, on behalf of the respondent in this appeal, that what the appellant, Dr Sultan, is inviting me to do is exactly what Collins J did in those two cases where he was reversed by the Court of Appeal).

22. In his very helpful submissions, counsel for the appellant took me to various passages of the evidence before the Panel, which he submitted:

(1) Demonstrated that Dr Tahir's offer of assistance constituted a realistic prospect of overcoming the shortcomings in the appellant's clinical performance, as highlighted by the Assessment Team and, as I say to his credit, accepted by Dr Sultan;

(2) Identified that although there were shortcomings there were also some positive aspects to Dr Sultan's performance which made it more likely that the admitted shortcomings could be resolved by the remedial steps and training offered by Dr Tahir;

(3) Confirmed that the appellant had had, until the unfortunate events with which this appeal is concerned, an unblemished career;

(4) Identified a number of powerful items of mitigation, namely that the breach of client confidentiality occurred at a time when the appellant was having to move surgery at the request of the PCT, whilst at the same time his wife was terminally ill. In fact, she died in June 2009 at about the time that the move of the surgery was to take place, and at a time when the appellant's relationship with his professional partner, Dr Ali, was, to say the least, strained.

23. It was also submitted, on behalf of the appellant, that the results of the performance assessment had to be considered in the context of the appellant's difficult personal circumstances. Had the Panel taken all these matters properly into account, it should have come to a different conclusion.
24. To my mind, there is no substance whatsoever in the submissions put forward on Dr Sultan's behalf that the Panel erred in deciding to erase the appellant and failed to provide adequate reasons to support that decision; still less that the sanction imposed was disproportionate in that it was imposed without giving full consideration to the possibility of suspension as a proportionate sanction, so as to enable the appellant the opportunity to address issues of remediation and insight at a future review hearing. Nor is there any substance in the submission that the sanction of erasure was triggered by the deficient professional performance and not by the issue of misconduct.
25. The Medical Act is clear: the Panel's power to impose sanctions derives from its finding that a doctor's fitness to practise is impaired. In this case the finding was based on two matters and the sanction is based, therefore, on both of those matters, namely misconduct and deficient professional practice. (That is made clear in both the determination on impairment day 3, page 3D to E, and the decision on the determination of sanction, day 5, page 8D).
26. It is plain from a detailed reading of the determination on sanction that the Panel took all of the matters referred to by Dr Sultan's counsel fully into account. At the Panel hearing Dr Sultan's then counsel made representations about Dr Sultan's mental condition and his wife's illness and death, and indeed Dr Sultan gave evidence on those matters. It is plain that the Panel took those matters into account (see, for example, day 3, page 2H, page 5E to F, page 1E to G, page 3B to C and page 3D to E).
27. The Assessment Team also made reference to Dr Sultan's personal circumstances in its report. However, as was submitted by counsel for the respondent, the Panel has to act in the interests of the public and be guided by the main objective of the respondent itself to be found in section 1(1A) of the Medical Act. The Panel was well aware of the difficulties in Dr Sultan's practice and referred to them in its determination. However, as the Panel correctly recorded, Dr Ali was not before the Panel and they were concerned exclusively with Dr Sultan's fitness to practise. He was, after all, the senior partner in the practice and indeed at that time had already given Dr Ali notice. Dr Sultan had been suspended from practice so that it was Dr Ali who was looking after the patients while Dr Sultan was taking responsibility for the management of the practice.
28. It was Dr Sultan's role, therefore, to supervise the practice move and, again in fairness to Dr Sultan, he entirely accepted it was his responsibility that the patient records were dealt with in the way they were. It was he, and he alone, who gave the instruction to Mr Gallon. It was also plain that the Panel were aware that Dr Sultan had practised medicine without any adverse findings before the incidents with which the Panel was concerned. There is an express reference by the Panel to evidence from Dr Clarke on the point, although, of course, they were also aware that difficulties had come to light as early as 2003. It is important to recall that the Panel were considering Dr Sultan's fitness to practise as at the date of the hearing, which is what they are required to do by section 35D of the Medical Act.
29. So far as the plans put forward by Dr Tahir to retrain the appellant are concerned, in my judgment it is plain from the extracts of the Panel's determination on sanction, to which I have referred, that careful consideration was given to these plans (see, for example, D5/9 to 10) as well as to the expert view of the Performance Assessment Team. However, the Panel noted that Dr Tahir's experience was with doctors at a much earlier stage of their careers and who had not been suspended, in contrast to the position with the appellant in this case. As the Panel noted D5/9E, which I think I have already quoted, but I will repeat it here for the sake of completeness:

"Dr Tahir gave evidence of his expertise in retraining under-achieving junior doctors. The Panel could not fail to be impressed by his enthusiasm, though it notes that this enthusiasm was tempered by his acknowledging that, never before, had he been faced with the task of assisting a doctor with your many years of practice and, at the same time, your level of deficient performance. Dr Tahir further acknowledged that it would be impracticable to retrain you adequately, were your registration to remain suspended.

In considering whether his willingness to retrain you and to help you recover your skills was matched by his ability to provide the required input and your ability to deliver good and positive results to repay his efforts, the Panel looked very closely at his evidence and his motivation. No one can deny that his altruism is both genuine and sincere as its provenance lies in his religious belief that it is his duty to do good and to help others. This is what he told the Panel and the Panel accepts it. Neither can it be said that the proposal Dr Tahir put to the Panel had not been carefully thought out, worked through or discussed fully with you.

...Looking at the matter objectively and independently, the Panel has determined that, as a matter of practicality, it is unrealistic to expect Dr C to be able to deliver the level of support for the duration he regards as necessary."

30. In my judgment, the Panel is well placed to make this assessment, bringing to bear its expertise and experience and relying on the views of its Assessment Team. There are no grounds for this court to interfere with the judgment made by the Panel, which, in my judgment, was plainly entitled to come to the conclusion it did, and it cannot be said that the sanction imposed was unjustified or disproportionate.
31. Finally, and for the sake of completeness, so far as the question of the adequacy of reasoning is concerned, I would add that, to my mind, there is nothing in this point in circumstances where, unusually a full transcript of the proceedings, including the evidence, is provided to the appellant, and where the Panel is not legally qualified, but consists of a mix of expert medical and lay persons, albeit with advice from a legal adviser.
32. For all these reasons, therefore, I would dismiss this appeal.
33. MR HARE: We do apply for our costs of defending the appeal and invite your Lordship to assess them summarily, since this hearing has not taken more than a day. There is a schedule, which should be among your Lordship's papers. If there is not I have another copy.
34. HIS HONOUR JUDGE McKENNA: I certainly have not seen one. If you can produce one that would be very helpful.
35. MR HARE: I know my learned friend, Mr Qureshi, has seen it and saw it before today. This was prepared the day before yesterday and so I did not have the fee for the hearing which I have added in, and added VAT in relation to that. It brings the grand total to £6,276, including VAT, as relevant.
36. As I understand it, my learned friend does not object to either the principle that you should summarily assess the costs, or should have them in that sum. You may well wish to hear from my learned friend on that matter. That does not exhaust it because your Lordship still has to take a view on whether or not the costs are proportionate. What we say in relation to my solicitors' fees is two points: the first is that the General Medical Council undertook to provide a bundle, which we hope is of some assistance. It was not clear when the appellant's bundle emerged.
37. HIS HONOUR JUDGE McKENNA: It was of assistance because I was able to read it yesterday morning, whereas I did not get the appellant's bundle until 4 o'clock yesterday afternoon.
38. MR HARE: That is what we hoped. As your Lordship can see, a fair amount of the work on documents was in relation to that. The other matter is that I am attended to by a trainee solicitor from the General Medical Council, but no claim is made for the attendance of my solicitor. On those bases we say these are proportionate costs. The only other matter is that the matter raised by my learned friend, Mr Qureshi, this morning was whether or not it would be possible to give a little longer than usual (14 days) to pay any order as to costs. We have no objection to that and I suggested 28 days, which Mr Qureshi appeared to be happy with, but no doubt his colleague will address you on that.
39. MISS JOHNSON: I am Miss Johnson from Mr Qureshi's chambers. In relation to the costs, the only thing to ask for was for 28 days for my client to pay.
40. HIS HONOUR JUDGE McKENNA: Thank you very much. Very helpful. The next issue is costs. There is no issue but that the unsuccessful appellant should pay the successful respondent's costs and I am asked summarily to assess those costs by reference to a costs schedule. The sum claimed inclusive of the respondent's counsel's fee for today's hearing is £6,276. Counsel for the appellant does not raise any issues in respect of the quantum of the appellant's costs. I am satisfied that the figure claimed is proportionate. I am satisfied that the hourly rate is appropriate, the amount of time claimed is reasonable, and therefore I am content summarily to assess the respondent's costs in the sum claimed, namely £6,276, which I order should be paid within 28 days.
41. The order will simply be (1) appeal dismissed and (2) appellant to pay the respondent's costs of the appeal summarily assessed in the sum of £6,276 payable in 28 days. Thank you very much Mr Hare and to you too Miss Johnson.