England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		18/02/2013

Mr Justice Mostyn :


 


1. This is an appeal pursuant to section 40 Medical Act 1983 against a sanction of erasure made by the General Medical Council (GMC) Fitness to Practise Panel (FTPP) on 27 August 2010. The appellant now advances a single ground of appeal – that the sanction was disproportionate.
2. The appeal is governed by CPR 52.11(3) which provides:

"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"

3. I have been given a bundle of authorities but the principles have all been succinctly captured by Laws LJ in the decision of Raschid v General Medical Council [2007] 1 WLR 1460.
4. Taking the reasoning of Laws LJ in combination with CPR 52.11(3) the governing principles are:

i) I can only overturn the decision of the FTPP if I am satisfied that it was either wrong or unjust because of a serious procedural or other irregularity in its proceedings (CPR 52.11(3))

ii) In determining whether the decision was wrong I must pay close regard to the special expertise of the FTPP to make the required judgment (Raschid paras 16, 19).

iii) Equally, I must have in mind that the exercise is centrally concerned with the reputation and standards of the profession, and the protection of the public, rather than the punishment of the doctor (paras 16, 18).

iv) The High Court will correct material errors of fact and of 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 (para 20).

v) Where the appeal is against a sanction (as here) my decision must not constitute an exercise in re-sentencing or the substitution of one view of the merits for another (paras 21, 22).

5. In considering factor (iii) I remind myself of the words of Sir Anthony Clarke MR in General Medical Council v Meadow [2006] EWCA Civ 1390 [2007] 1 QB 462 at para 32:

"the purpose of FTP proceedings is not to punish the practitioner for past misdoings but to protect the public against the acts and omissions of those who are not fit to practise. The FPP thus looks forward not back. However, in order to form a view as to the fitness of a person to practise today, it is evident that it will have to take account of the way in which the person concerned has acted or failed to act in the past."

Thus, the exercise is proleptic but the best prophet of the future is the past. (But we should also surely give ourselves the warning that appears on every financial product for sale that past performance is no guarantee of future returns.) By the same token, as Sir Thomas Bingham MR explained in Bolton v Law Society [1994] 1 WLR 512, there should be a full understanding by me of the reason why the FTPP makes an order which might otherwise seem harsh. The sanction may have consequences for the individual and his family which are deeply unfortunate and unintended. But that does not make the sanction the wrong order if it is otherwise right: "The reputation of the professions is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is part of the price." The reason that the reputation of the profession is so important is not a reflection of a collective amour propre. It is an aspect of the need to protect the public. The public must be able to approach doctors, lawyers and other professionals with complete faith that they are both honest and competent. Without that faith the problems that would arise are too obvious to state.

6. At the end of the day the appellate test is (in a case not involving procedural unfairness) simply whether the decision was "wrong". This concept of wrongness should not be glossed by adverbs such as "seriously" or "clearly" or "plainly" – see General Medical Council v Meadow at para 125 per Auld LJ, and Cheatle v GMC [2009] EWHC 645 (Admin) at paras 12 and 15 per Cranston J.
7. By s41(1) and (2) of the 1983 Act the FTPP may restore an erased name to the register - but not before 5 years has elapsed from the date of erasure. Here, the direction was that the erasure should take effect 28 days after notice of the decision was deemed served, which I imagine would have been a few days later, unless a right of appeal was exercised. In the meantime a suspension would operate. The appellant did exercise his right of appeal on 24 September 2010. It has taken an inordinate amount of time for the appeal to be heard – nearly 2½ years, although one adjournment (of about 6 months) was granted at the appellant's request. The result is that, if the appeal is dismissed, the erasure will only take effect now, and so the 5 years of quarantine imposed on the appellant has in effect been enlarged by 50% - simply because he exercised his right of appeal. This strikes me as most unfair but there is nothing I can do about it as it is the effect of the statutory provisions. It is probably the result of the law of unintended consequences (which as Lord Neuberger MR (as he then was) observed in a speech on 2 December 2009 seems to be "one of the most reliable pieces of law on the non-existent statute book"). I disagree with Miss Hobcraft's submission at para 36(h) of her skeleton that this is a factor which I can bring into account in deciding if the erasure sanction was wrong, but it is a troubling aspect of the legislation which I think ought to be looked at. This unhappy consequence will impact most acutely on the appellant here as he is now 70. If he fails in this appeal he will not be able to apply for restoration until he is 75, which in practical terms would be impossible. Thus, in the events which have occurred, the sanction will turn out to be a life sentence.
8. The appellant is, as I have said, 70. He qualified in India in March 1969 and then came to the UK where he was registered on 7 September 1970. He held various positions both in hospitals and as a (locum) GP. It appears that concern as to his fitness to practise arose in 2006, when he was referred to the GMC. There then commenced exhaustive procedures to assess his fitness. The appellant was suspended in 2006 and it is relevant for me to note that for now nearly 7 years he has not worked as a doctor.
9. At this point I set out in full the statement of charges that the appellant faced at the FTPP hearing in August 2010. This was in the following terms:

"That being registered under the Medical Act 1983, as amended,

1. You underwent a General Medical Council ("GMC") assessment of the standard of your professional performance ("First Assessment") on,

a. 24 to 26 January 2007 (peer review), and

b. 16 February 2007 (tests of competence)

2. In the peer review phase of the first assessment your professional performance was unacceptable in the following areas of Good Medical Practice:

a. Assessment of patients' condition,

b. Providing or arranging treatment, and

c. Record keeping;

3. In the peer review phase of the first assessment your professional performance was a cause for concern in the following areas of Good Medical Practice:

a. Providing or arranging investigations,

b. Arranging cover, delegation and referral,

c. Constructive participation in audit, assessment and appraisal, and

d. Paying due regard to efficacy and use of resources

4. In the tests of competence phase of the First Assessment, you undertook,

a. A knowledge test in which you scored 67%, which was below the minimum score of 68.68%,

b. A simulated surgery in which,

i. Your overall score was 45% which was below the minimum score of 50%, and

ii. Your performance was unacceptable in several stations

c. An Observed Structured Clinical Examination in which your overall score was 57% which was below the minimum score of 70%;

5. You underwent a further GMC assessment of the standard of your professional performance on 27 August 2009 ("Second Assessment");

6. In the Second Assessment, you undertook,

a. A knowledge test in which,

i. You scored 61.66% which was below the minimum acceptable score of 64.69%, and,

ii. Your level of knowledge was unacceptable

b. A simulated surgery in which,

i. Your overall score was 28.96%, which was below the minimum score of 50%, and

ii. Your performance was unacceptable, and

c. An Objective Structured Clinical Examination in which your performance was unacceptable.

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

10. It can be seen from the above that there were two phases of assessment – in January/February 2007 and in August 2009. The first phase comprised peer review and tests of competence; the second consisted of tests of competence only.
11. The first phase of assessment was conducted by three GPs and a lay assessor. One of the doctors, Dr Berenice Beaumont, gave evidence to the FTPP. For the purposes of the peer review interviews were held with three doctors, a practice nurse and a practice manager, all of whom knew the appellant. The process was exhaustive -- the report runs to 573 pages. The assessors make judgments – as can be seen from the list of charges reference is made to performance giving rise to "cause for concern" or being "unacceptable". "Unacceptable" is defined as follows:

"there was evidence of repeated or persistent failure to comply with the professional standards appropriate to the work being done by the doctor, particularly where this places patients or members of the public in jeopardy. This grade was entered when the assessors felt that there was evidence that the criteria for an acceptable level of performance were regularly not being met, or if negative criteria were being met."

12. As the statement of charges says the appellant's performance was judged unacceptable in the key fields of assessment of patients' condition; in providing or arranging treatment; and in record keeping. The failings were all spelt out with pitiless detail. In relation to the assessment of patients' conditions there were 10 separate instances of failure. An example is patient number 14443, an 11 year old girl more than 30 weeks' pregnant. The appellant failed to diagnose her pregnancy.
13. The failures in providing or arranging treatment were explained over four pages of text. A striking instance was the use of diazepam for patient 1570 apparently for the treatment of irritable bowel syndrome.
14. Record keeping is of course absolutely vital. Yet failures in this regard were expounded over two pages of text. One example concerned patient 11490 where the notes recorded the prescription of antibiotics but with no explanation for that treatment.
15. The statement of charges records that in the tests of competence the appellant failed both the knowledge test and the simulated surgery. (A simulated surgery is a simulation where a GP under assessment conducts himself in his surgery when presented with pretended ailments by actors.) In the knowledge test the appellant answered 133 out of 200 questions correctly - a score of 67%. This performance was measured against the performance of 188 established GPs who had taken the test. For that cohort the mean score was about 90%. The minimum score was set at 68.7% by the Angoff standard-setting method. This method requires the assembly of a group of subject matter experts, who are asked to evaluate each item and estimate the proportion of minimally competent examinees that would correctly answer that item. The ratings are averaged and then aggregated to obtain a panel-recommended cut. Only a small handful of the cohort missed the cut. The appellant's score would have placed him almost at the very bottom of the cohort. The conclusion of the assessors was that "Dr Luthra's knowledge base was low".
16. In the simulated surgery assessment the appellant scored 45%. Again this performance was measured against that of a cohort of established GPs, this time 120 in number. The mean was about 80% and the minimum score was set at 50%. None of the cohort fell below this score. For the purposes of the test 10 "stations" were assessed ranging from depression to pre-menstrual tension. It is worth recording the assessment by one of the doctors for breast metastases:

"…doesn't appear to have read notes - re previous breast cancer. Says shadowing in lung - this could be infection despite report - effectively lied to patient. Hints at the possibility of cancer but falsely reassures. Lots of jargon".

17. The conclusion of the assessors was:

"Dr Luthra's performance [was] unacceptable in several stations. We have particular concerns around his inability to produce a coherent management plan on several occasions. We also noted that his explanation to patients was poor, particularly in breast cancer, diabetes and chest pain patients."

18. The assessors concluded their report by making the following recommendations:

i) We recommend that Dr Luthra should not work as an independent general practitioner, as a locum, or for an out of hours service until such time as he can satisfy the GMC that he has reached the required standard.

ii) We recommend that Dr Luthra be given the opportunity to undertake further training in the form of an assessment and training period in an approved training practice. The practice would engage in supervised consulting sessions and tutorials based on the findings of this report.

iii) If the practice felt that sufficient progress had been made during this period then the period could be extended so that Dr Luthra would be working as a GP registrar for a further period of 3 to 9 months.

iv) We recommend further review by the GMC at the conclusion of this period.

19. Following the first assessment undertakings were proposed to the appellant and agreed by him. These included an undertaking for the appellant to work with a Director of General Practice Postgraduate Education (or a nominated deputy), so as to formulate a personal development plan specifically designed to address deficiencies in particular areas of his practice. In order to work as a supervised GP in the London Deanery area, the appellant needed to apply for a place on the Deanery's induction and refresher scheme. However, the appellant three times failed the (Multiple Choice Question) examinations which were necessary for him to pass in order for him to gain entry to this scheme. On 21 October 2008 and 15 January 2009 Dr Jamieson of the Deanery advised the GMC that they could help no further. The Wessex Deanery made a similar indication. In these circumstances the GMC's case examiners considered that the appellant's performance needed to be reassessed. Hence the second assessment. It might be thought that the GMC were extending considerable latitude to the appellant - after all the first assessment had vividly pointed out the need for further training in supervised consulting sessions but the appellant did not even got to first base because he was unable to pass the entry multiple-choice examinations, even with three attempts.
20. As the statement of charges explains the appellant in important respects failed the second assessment. Dr Beaumont was again an assessor. In the knowledge test the appellant scored 61.66% which was below the minimum acceptable score of 64.69%. Here the mean score of the comparison cohort was 80.24%. The overall level of knowledge of the appellant was judged to be unacceptable.
21. In the simulated surgery assessment the appellant score was disastrous - 28.96%. The minimum acceptable score was 50% and the mean was about 85%. The overall conclusion was "the pattern is one of poor history taking, a doctor who does not listen, omits important parts of history and who focuses on one part of a problem. He makes the consultation more complex without listening to patients."
22. In addition the appellant underwent an Objective Structured Clinical Examination. For this the appellant was tested in 13 stations ranging from use of auriscope to breast examination. He was numerically marked by the doctors but not by the lay assessor and there is no overall score as such. However for each station the assessment is measured against the performance of a group of established GPs, which vary in number from station to station. Some of the scores of the appellant were disastrous. For example for basic life support, where the comparison cohort was 134 in number, and where the median score was 36.00 and the 25^th percentile 27.75, the appellant scored a mere 2.5. In their conclusion the assessors wrote "there is a pattern ... of an unsystematic approach to examination, incomplete examinations, and not understanding how to deal with certain situations".
23. In their overall conclusions the assessors formally and unanimously opined that:

i) the standard of the appellant's professional performance had been deficient;

ii) the appellant was not fit to practise at all; and

iii) the appellant should cease professional practice.

24. At some point following this assessment (but I am not told when) the GMC instituted formal disciplinary proceedings against the appellant. This resulted in the FTPP proceedings and adjudication from which the appellant appeals to me. A proceeding in the FTPP is divided into three parts. First, there is the fact finding stage. Second, is the stage where the panel decides whether the facts as found amounts to proof of impairment. The third stage, if impairment is found, is the adjudication on sanction. Each stage has its own opening, evidence, closing speeches and judgment. The panel comprised a chairman (who was not a doctor) and two other members (one of whom was medically qualified). There was in addition a legal assessor, a specialist adviser who was medically qualified, and a secretary. The GMC and the appellant were represented by counsel. The proceedings lasted five days and were transcribed from the first minute to the last. It is fair to say that the proceedings were exhaustive, and that no stone was left unturned. Of course when a man's professional reputation, and ability to practice in the future, are on the line the disciplinary inquiry must be thorough and scrupulously fair. But I cannot help observing that an inquiry with this degree of elaboration, and at inevitably enormous expense to the profession, is perhaps a counsel of perfection, particularly in this age of austerity in which we live.
25. This elaborate approach is perhaps exemplified by the factual determination. The appellant's stance was that he neither admitted nor challenged the facts alleged. One might have thought in those circumstances that a written opening pointing to the relevant documentary material would have enabled an adjudication of the facts in almost summary form. But instead there was a lengthy oral opening, Dr Beaumont was called and gave evidence for over a day, and there were closing submissions. The panel retired to consider its verdict overnight and, perhaps not very surprisingly, on the morning of Day 3 found all the facts alleged in the statement of charges to be proved.
26. Matters proceeded similarly at the impairment phase. Although counsel for the appellant did not resist a finding of impairment on the facts as found (and he could hardly have done so) there was a lengthy opening and an equally lengthy exposition of the principles relating to findings of impairment from the legal adviser. This occupied the remainder of the day and while it is, generally speaking, a worthy thing that justice should be seen to be done I have to wonder whether a short summary disposal may not have been more apt in the circumstances. At all events the panel again retired to consider its verdict overnight and there were no surprises when on the morning of Day 4 impairment was found proved. The proceedings then moved to the sanctions phase, which was of course, in reality, the inevitable sole issue which divided the appellant from the GMC.
27. The sanctions available in ascending order of severity were:

i) no action;

ii) the imposition of conditions on the doctors registration for a period of up to 3 years;

iii) suspension for up to 12 months;

iv) erasure (although this sanction is not available in a case that relates solely to a doctor's health).

The panel is required, for obvious reasons, to work its way up the ladder starting at the bottom.

28. At the time of the hearing there was available Indicative Sanctions Guidance (dated April 2009 with 7 August 2009 revisions) published by the GMC. As its name suggests this is just guidance, but the panel would have been advised to have it in mind and, no doubt, would have had to give good reasons for departure from its principles and recommendations. Under the heading "proportionality" the guidance states at paragraph 21 "in deciding what sanction, if any, to impose the panel should have regard to the principle of proportionality, weighing in the interests of the public with those of the practitioner. The panel should consider the sanctions available starting with the least restrictive". In paragraph 62, when discussing whether conditions might be appropriate as a sanction, the guidance refers to "[the] potential and willingness [of the doctor] to respond positively to retraining, in particular evidence of the doctor's commitment to keeping his/her knowledge and skills up to date throughout his/her working life, improving the quality of his/her work and promoting patient safety". In paragraph 75, when discussing suspension, the guidance refers to "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 the potential for remediation or retraining" (emphasis in original). I draw attention here to the prominent reference to the risk to patient safety.
29. In paragraph 82, when discussing the ultimate sanction of erasure, the guidance refers to particularly serious departure from, or reckless disregard for, the principles set out in Good Medical Practice. Further, in the third indent it gives as an instance warranting erasure "[the] doing [of] serious harm to others (patients or otherwise) either deliberately or through incompetence and particularly where there is a continuing risk to patients". It can be seen that this language mirrors s31(2)(a) Children Act 1989, which supplies the well-known threshold for making a care order: the court must be satisfied that "the child concerned is suffering, or is likely to suffer, significant harm". And as is well-known, by virtue of decisions from the highest court, when determining whether there is a likelihood or risk of a child suffering significant harm in the future the court must be satisfied, having regard to the facts that it has found proved, that there is a "real possibility" of such harm eventuating. So it must also be the case in proceedings such as these, where the protection of the public must surely be the paramount consideration. That said, paragraph 77 makes clear, rightly and correctly, that erasure will be ordered where this is "the only means of protecting patients and the wider public interest, which includes maintaining public trust and confidence in the profession" (my emphasis).
30. In this case the appellant was recalled in the sanctions phase to give further fairly extensive oral evidence. There was some discussion as to whether Dr Whiteman from the London Deanery should give evidence, but in the end her attendance was not required on the basis that an e-mail from her would stand as her evidence. That e-mail confirmed that the Deanery would allow a fresh application to the induction and refresher course if the doctor demonstrated that his situation had changed significantly with regard to his learning needs and competences. She gave an example of a doctor who had been allowed to make such a fresh application where the GMC supported his claim for improvement. Here I suppose that if the appellant had performed better in the second assessment such a fresh application might have been allowed.
31. On behalf of the GMC counsel made forthright submissions in support of erasure. While she accepted that there was no suggestion that serious harm had "necessarily" being caused in this case there was clear evidence of the risk of serious harm in the face of the examples, about which the panel heard, in the performance assessments. She stated:

"Dr Luthra has been given numerous opportunities which he has not, or has not been capable, of taking advantage. This cannot go on for ever. The performance assessments took the view that he is not fit to practice at all. He might ask for another chance to prove himself, but ... there is simply no realistic prospect of this doctor being remediated to a sufficient standard within a reasonable period of time to enable him to practise without restriction. ... His insight into his level of competence and his capability, or potential, to improve is lacking, such that the prospect of successful retraining is negligible and, therefore ... conditions or suspension would not be sufficient to maintain public safety or public confidence in the profession".

32. On behalf of the appellant counsel made equally eloquent submissions in support of a sanction short of erasure. He stated:

"…this is not a doctor whose position is hopeless, who could never pass these exams, who has little insight into the difficulties or the insufficiencies of his performance, but somebody who is worthy of further consideration and opportunity with a sanction less than erasure to at least try again to see whether he can rescue the situation in terms of his education and his training".

33. The panel again adjourned overnight to consider its verdict. On the morning of Day 5 it determined that erasure was the only appropriate sanction. It held:

"The panel finds that your lack of knowledge and skill amounts to a particularly serious departure from the principles set out in Good Medical Practice. The panel is satisfied that your performance has been shown to be fundamentally incompatible with that of a doctor. You are likely to present a risk to patients if you were to practise medicine. The panel concludes that in the foreseeable future there will be no avenues open to you through which you can retrain, since your level of knowledge is too low for you to gain access to a recognised training programme."

34. I have already explained how this appeal took an inordinate time to be heard by me. I have received excellent written and oral submissions from Miss Hobcraft for the appellant and from Mr Pievsky for the GMC.
35. Miss Hobcraft argued that the erasure decision was wrong for the following reasons:

i) The panel failed to bear properly in mind the following parts of the Indicative Sanctions Guidance:

a) The Panel may erase a doctor from the register in any case – except one which relates solely to the doctor's health – where this is the only means of protecting patients and the wider public interests, which includes maintaining public trust and confidence in the profession (paragraph 77); it is not clear that in the circumstances set out below this was the only means of protecting patients and thus erasure was disproportionate.

b) There is a (non exhaustive) list of circumstance in which erasure may be appropriate (paragraph 82) – the only one that can be said to be relevant to Dr Luthra is the first "Particularly serious departure from the principles set out in Good Medical Practice" but in the Panel's impairment decision they do not set out (somewhat unusually) what the specific departures from Good Medical Practice were only stating that Dr Luthra's "performance is deficient and seriously below the standard expected of a medical practitioner as set out in Good Medical Practice" to enable Dr Luthra and members of the public to understand what the departures were;

ii) In assessing whether erasure was the only means available to them, the Panel, in their sanction decision, do not appear to given sufficient weight to the positive aspects of Dr Luthra's performance, particularly in the 2007 GMC Performance Assessment – including the fact that Dr Luthra scored, in the peer review, 7 areas that were assessed as 'Acceptable' – which critically included working within the limits of his competence – against 3 Cause for Concerns and 4 Unacceptables. The Panel recognised 'some positive aspects to your medical practice, such as your caring manner and your ability to maintain good relationships with your colleagues'. However, critically, the Panel did not acknowledge the other positives that were found, which are much broader than a caring manner and included:

a) Respect for Patients, Trust and Confidentiality

b) Communication with Patients

c) Treatment in Emergencies (but based on limited information)

d) Working within limits of Competence

e) Working within Laws and Regulations

iii) A demonstrated ability to work within limits of competence and within laws and regulations must be a relevant consideration in assessing the ability of a doctor to recognise their deficiencies and respond to retraining – this aspect is not addressed in the Panel's decision yet is clearly an important factor in assessing whether erasure was the proportionate response. There was no opportunity for these aspects to be re-demonstrated in the 2009 Performance Assessment because there was no peer review component in this assessment and the retraining and supervision recommended in the 2007 assessment had never been realised;

iv) The Panel do not appear to have given sufficient weight to the fact that the 2007 Performance Assessment identified training needs:

"We recommend that Dr Luthra be given the opportunity to undertake further training in the form of an assessment and training period in an approved training practice."

That Dr Luthra never had any further training in an approved training practice and that the issues identified appeared to be a skills gap and training need – the proportionate response would have been to allow him more time to demonstrate his ability to increase his knowledge base. In 2007 it was concluded that 'his knowledge base is low but is around the minimum acceptable standard" and there were issues as to inadequate management plans and unfocussed history taking – again suggesting the need for remedial training which the 2009 Performance Assessment confirmed Dr Luthra had not had;

v) The Panel, in their sanction decision, appear to place undue weight on lack of remediation in reaching their decision to erase, despite the fact that with being out of practice since July 2006, Dr Luthra had not had the opportunity to demonstrate remediation of any of the deficiencies in any clinical setting; There are inconsistencies between the Panel's determination on impairment and sanction in relation to the courses Dr Luthra had undertaken. In the impairment decision the Panel concluded that they had serious doubts that the deficiencies could be remedied because of the little gain from courses attended. Suggesting the courses were relevant but still resulted in little gain. Whereas, in contrast, at sanction stage, the Panel was "concerned that you appear to have submitted yourself to many courses and lectures with little regard as to whether they are appropriate remedies for your deficiencies" .

vi) The Panel, in their sanction decision, do not appear to have considered the ability of Dr Luthra's insight into his deficiencies to be amenable to improvement in assessing whether erasure was the proportionate response; particularly in light of a) his engagement with the GMC Performance Assessment processes, b) his engagement with the GMC FTPP proceedings, c) the fact that he did not challenge the allegation against him and accepted the findings of the Performance Assessments and d) the fact that Dr Luthra accepted impairment;

vii) The Panel, in their sanction decision, do not appear to give any consideration to the personal component - the impact erasure (where no application can be made for restoration before 5 years have elapsed) would have on an individual at the latter stages of his career (Dr Luthra is currently 70 years old) by depriving him of the only profession he has ever known at a time when he wants to continue in work and continue contributing to society;

viii) The Panel, in their sanction decision, do not appear to have given full consideration to the possibility of suspension as a proportionate sanction, which could have afforded Dr Luthra the opportunity to address issues of remediation and insight at a future review hearing without closing the door on a career that pre 2006 was unblemished and long, particularly given the email referenced in the sanction decision from Dr Julia Whiteman which indicated that with robust evidence of improvement a further fresh attempt to the I&R could be allowed; it would have been proportionate to suspend to afford Dr Luthra this opportunity to increase his knowledge base during any period of suspension, in light of the positive aspects of his practise that were found, particularly during the 2007 Performance Assessment;

ix) Finally, because an appeal under s.40 is by way of rehearing, the court is invited to take into account, as a relevant factor, when assessing proportionality of sanction, the time that has elapsed since the original decision (almost 2½ years), particularly in light of Dr Luthra's age, if this sanction were to be upheld now Dr Luthra would face a 5 year period before he could apply for restoration, at which point he would be at least 75, when he has, already been under an immediate suspension order since the substantive determinations were made against him in August 2010.

36. In his submissions Mr Pievsky argued shortly that for the reasons given by the Panel, erasure was the only realistic and appropriate outcome, given the fact that the appellant's performance had been deficient in two GMC assessments and had failed three entry-point exams for remedial training. He was rationally considered not to have demonstrated either sufficient insight into his problems or any real potential for any improvement. It was a matter for the professional judgment of the Panel and it cannot be said that the Panel's decision was "clearly inappropriate".
37. While Miss Hobcraft's submissions were eloquently and persuasively put both in writing and orally I am sad to say that I do not agree with them. I agree with Mr Pievsky's submissions, although I would not, for the reasons explained above in para 6, adopt his description of the panel's decision as "not clearly inappropriate". Rather, I would say that it was not wrong.
38. I do not agree that of the factors listed in paragraph 82 of the indicative guidance the only one that can be said to be relevant to the appellant is the first indent namely "particularly serious departure from the principles set out in good medical practice". Although in its finding the panel did not specifically identify which of the factors mentioned in paragraph 82 were being relied on, the argument of the GMC in support of erasure was based squarely on the third indent and specifically on the risk to which patients would be exposed in the future were a sanction short of erasure to be imposed. That approach was plainly accepted by the panel in its finding which I have quoted at paragraph 33 above. In my judgment that proleptic assessment was a finding that the panel was entitled to make; indeed I would say that on the evidence it would have been doubtfully correct for the panel to have made any other assessment. Of course, some aspects of the appellant's performance received approbation - it was not, as Miss Hobcraft rightly says "a universal picture of failure". But the fact that in some respects the appellant performed positively does not inform at all an assessment as to whether he could recognise his deficiencies and respond to retraining in relation to those fields where he had failed. It seems to me that in that regard the key failings must be considered unto themselves, and here the appraisal of the assessors, particularly in the second phase, and of the panel, was that no amount of further opportunity for retraining would cure the appellant's core deficiencies in knowledge, and defects in competence, so as to eliminate risk. That is a factual determination which was to be made, and which was in my judgment correctly made, irrespective of positive performance in other fields.
39. I reject Miss Hobcraft's argument that the appellant was the victim of a Catch-22. She argues that the first 2007 assessment recommended retraining (see para 18 above) but that the appellant has never been able to undertake that retraining because the London Deanery refused to allow him to enter the induction and refresher scheme. But the reason he was refused entry was because he failed, three times, the multiple choice question exams. It seems to me that passing those exams is a reasonable condition of entry into the scheme and that therefore the appellant is not the victim of a Catch-22; rather it was because of his own failings that he was not able to take up the training which the 2007 assessment recommended.
40. I do not think that any light is shone on the appellant's insight into, and ability to repair, his deficiencies by the fact that he engaged fully with the two assessments and the FTPP proceedings. In that regard he really had no choice if he were to have any chance of avoiding erasure.
41. I do not consider that the decision not to afford the appellant any further opportunity to address issues of remediation and insight at a further review hearing was unreasonable. The history demonstrates that the appellant had been offered manifold opportunities. It can fairly be said that the GMC bent over backwards to afford him these opportunities, but that on account of core deficiencies in his knowledge and competence he was not able to avail himself of them. Had his performance in the 2009 assessment been borderline then it might have been reasonable for the Deanery to have exercised its discretion to allow him to attempt once again the entry exam for the induction and refresher scheme. But his performance in the second assessment was nowhere near borderline.
42. I have no doubt that the panel bore in mind the harsh personal impact of its decision on the appellant at his age, but for the reasons explained by Sir Thomas Bingham MR, which I have referred to above, the personal impact of the verdict is subservient to the wider interests of the protection of the public from risk and the reputation of the profession.
43. I have explained above why I think it highly unfair that the consequence of the appellant's decision to appeal has resulted in the effective enlargement of the quarantine period; but that is something about which I can do nothing. Certainly it cannot afford a reason for allowing an appeal that should otherwise be dismissed.
44. For all these reasons the appeal is dismissed.