England and Wales High Court (Administrative Court) Decisions

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

		Sitting at: Manchester Civil Justice Centre 1 Bridge Street West Manchester M60 9DJ
		24th January 2013

HIS HONOUR JUDGE WOOD QC:

Introduction

1. This judicial review claim has been brought to challenge the decision of a fitness to practise panel (FTPP) assigned by the Medical Practitioners Tribunal Service (MPTS) on behalf of the General Medical Council (GMC) following a hearing in June of last year, refusing to allow the Claimant's application for voluntary erasure from the United Kingdom register of medical practitioners, and further refusing to stay outstanding fitness to practise proceedings on the basis that the Claimant for medical reasons was unfit to participate in those proceedings.
2. I heard argument over the course of one day on Thursday 24th January, and reserved my judgment to enable an effective consideration of the numerous authorities referred to by counsel.
3. At the outset of the hearing I acceded to an unopposed application on behalf of the Claimant to conduct the hearing in private. In fact at the time of the application, present in the public gallery were Mr and Mrs W the parents of the deceased child whose treatment is central to the issues which led to the fitness to practise proceedings. Earlier this month, Mr and Mrs W failed in their own application to intervene in the proceedings. Their interest in participation is clearly understandable as is their desire to learn as much as possible about the prospect of the doctor alleged to be responsible for the death of their son being investigated or held to account.
4. However, in respect of the hearing of the substantive judicial review, I was satisfied that although under CPR 39.2 the general rule is that the hearing should be in public, because of the very sensitive nature of the subject matter which related to the mental health of the Claimant, and arguments about his ability to participate in the judicial and quasi-judicial process may be necessary, it was in the interests of justice for the matter to proceed in private. Indeed, a substantial part of the hearing in June of last year before the FTPP was conducted in private in accordance with the FTP rules, because a health issue was involved.
5. Furthermore, this is a judgment which will be in the public domain and will identify all the necessary aspects which were ventilated before me in the private hearing, enabling Mr and Mrs W to be fully aware of the reasons why I have made the decision which I do. This judgment will therefore anonymise the parties and the main characters. I shall refer to the Claimant as Dr I.

Background

6. Dr I, who is 67 years of age, and who qualified as a doctor in 1977, had practised for a number of years in paediatrics. In July 2008 he was working as a paediatric locum in Queen Elizabeth Hospital in Woolwich. The 10-year-old son of Mr and Mrs W (referred to as TW) was undergoing treatment at the time for ongoing difficulties in his left hip. He had suffered from cerebral palsy, a condition caused at birth. An operation was performed on his hip which continued to cause intermittent pain. This was sufficiently severe to require his admission to the accident and emergency Department at the hospital on 17^th November 2008 when Dr I was on duty. T could not be admitted as an inpatient because of the shortage of beds, and Dr I decided to administer strong pain relief by means of a fentanyl patch, an opiate, which released at 50 µg per hour. He was also prescribed diazepam and an antiemetic as a counter effect to nausea from the fentanyl.
7. When the prescription was taken to the hospital pharmacy, significant concern was expressed by the pharmacist as to the level of fentanyl dosage. Dr I was reluctant to change this and ultimately agreed to halve the dosage, and the patch was then administered to T. Within two days of administration, the child developed a cardiac arrest and despite emergency admission and placement on a ventilator, he died on 19 November 2008.
8. Following a complaint made through solicitors by Mr and Mrs W to the GMC, the report of a consultant paediatrician was obtained which was highly critical of the Claimant's treatment, and in particular the prescription of such a high dose of opiate painkiller which was contraindicated and which carried with it significant risks. A direct causal link was made between the prescription and the death of the child. It was alleged that such a prescription was reckless and the Claimant's standard of care fell significantly below that expected of a competent paediatrician. In accordance with the General Medical Council (Fitness to Practise) Rules 2004 a decision was made by the case examiners dealing with the complaint to refer the case to an FTTP under Rule 8(2)(d).
9. In the meantime because of the seriousness of the complaint, the Claimant's case was referred to a GMC interim orders panel (IOP) in June 2009 for the consideration of an interim order. On 24 June 2009 conditions were imposed on Dr I's registration which allowed him to continue to practise on a limited basis. In fact, the Claimant chose at the time to move overseas, and worked in the period from 2009 until late 2011 in Western Australia, where he was subject to like conditions on his Australian registration, after the sharing of information with the overseas regulator in that country.
10. In July of last year, following the determination by the FTPP which is the subject of this judicial review, a further IOP imposed an interim order of suspension. The original interim order had been renewed by the High Court on two separate occasions because it had a maximum duration of 18 months without permission of the court.
11. Subsequent to the submission and investigation of the substantive complaint relating to TW, a complaint arose in relation to an earlier incident in 2007 involving the Claimant in which a child (AW) with cerebral palsy and other conditions had died at a hospital in North Wales after being admitted initially with a suspected viral infection, and subsequently with signs and symptoms suggestive of a blocked shunt. Although not directly involved in the administration of treatment, Dr I was responsible for the night clinical team and the management of the child, and was identified in a complaint with the specialist registrar. This incident was still under investigation at the time of the relevant FTP hearing in June last year, although as a Rule 8 letter has now been sent to the Claimant with identified charges, if this Claimant's fitness to practise is to be determined ultimately in a final hearing, the case will also involve allegations relating to AW.
12. Although he had been practising, apparently with a measure of success and without criticism in Australia following the death of TW, Dr I has for a number of years been suffering with mental health problems. These problems are central to the issues which were before the FTPP and have been the focus of this court's attention. They were complex and involved the exhibiting of Asperger's traits which was associated with recurrent depressive episodes, anxiety and obsessional tendencies. He had suicidal ideation, and had been receiving treatment from a psychiatrist, Dr Kumar, over several years. He was on medication and his condition intensified following the incident at the Queen Elizabeth Hospital. A full description of his condition is set out in a medical report from Dr Adrienne Reveley dated 4^th June 2012.
13. It would seem that this report had been obtained in the period leading up to the FTP hearing which had been scheduled to last for seven days starting on 18^th June last year. That panel had been intending to deal with the question as to whether the Claimant's fitness to practise was impaired by reason of his misconduct relating to the treatment of child TW. However, as he was entitled to (and I shall deal with the procedure in a little more detail later in this judgment) Dr I applied for voluntary erasure from the medical register, which if granted would have obviated the need for any FTP hearing and finding of impairment of fitness to practise. The question of voluntary erasure (VE) was therefore before the panel instead, to consider evidence as to whether or not the grounds of ill-health relied upon by Dr I entitled him to VE.
14. Alternatively, the Claimant's counsel, Miss O'Rourke QC, who has acted for him throughout all the proceedings, contended before the panel that the FTP proceedings should be stayed as the health of Dr I was such that he was unable to participate in any hearing. Counsel asked for the panel to deal with the question of VE before the question of a stay, as the obvious logical process, because if the proceedings were stayed, the panel may have been prevented from subsequently dealing with the VE application. However, the basis for the argument in relation to both applications was essentially the same as it relied significantly on the Claimant's medical condition, and his inability to have any meaningful participation in the proceedings.
15. The medical evidence was therefore central to the decision-making process of the panel, and as I have indicated it is also the focus of this review hearing. Accordingly it requires scrutiny. It is summarised in the statement of facts provided on the judicial review application as well as in the panel determination. Essentially, three psychiatrists provided written and oral evidence before the hearing of the FTPP that Dr I's mental health was such that not only was he unfit to participate effectively in the GMC proceedings, but also, and significantly that he was unfit to practise medicine now or at any time in the future.
16. In addition to the evidence of Dr Reveley, the principal expert on whom the Claimant relies, the panel heard evidence from Dr Kumar, the treating psychiatrist, and Dr Brian Harris, an expert whose opinion had been commissioned independently by the panel to provide an objective assessment of the material being presented on behalf of Dr I. There was no discernible disagreement between any of the experts.
17. Dealing with the specific matters raised, Dr Reveley was of the opinion that Dr I's Asperger's syndrome with the social and relationship dysfunction that came with it meant that he had never been fit to practise as a doctor. Both Dr Harris and Dr Reveley agreed that Dr I had a depressive disorder, and depressive symptoms were likely to increase stress. Both experts agreed that Dr I had the cognitive capacity to instruct counsel and to participate in the hearing, but nevertheless his depressive condition meant that the stress of the hearing would undermine his capacity to concentrate and engage with the process and also increased significantly the risk of harmful consequences, including suicide. His condition was unlikely to improve in the future to enable any effective or meaningful participation. Neither expert thought that the Claimant was seeking to fabricate his symptoms to avoid facing the consequences of the allegations against him.
18. The assessment of his own psychiatrist, Dr Kumar, was that the Claimant had been finding the proceedings very stressful, although he appeared calmer when away from the GMC hearing.
19. In answer to questions from Miss O'Rourke QC, Dr Harris agreed that it would be difficult for Dr I to listen to the evidence and to give proper instructions to her, at her shoulder so to speak, bearing in mind the usual sitting pattern of an FTPP at a final hearing. Further, he would not be able to give any meaningful evidence. Although Dr Harris was of the opinion that the Asperger's syndrome was not fully established, nevertheless he had traits of the condition which would have made things far more likely to decompensate in stressful conditions. In answer to questions from the panel as to whether the Claimant could participate in the hearing perhaps using video or telephone links, and where there were significant breaks, Dr Harris said (transcript D4/19):

"I think it would make it easier but Dr I has already admitted the mistake which I have said has been made clear to me, (sic) was a very, very serious mistake and is a charge, really of professional misconduct. For him to go over that in the depressed state, which he is in, and which my report has indicated, certainly would result, in my view, in a serious risk of suicide."

20. When discussing the degree of depressive illness, Dr Harris went on to say (D4/19-20):

"the best predictor of the future is his past depressive illness. When I answered that question I was not talking about suicidal ideation, I was talking about the ongoing depression which he is likely to experience for the rest of his life. If the question then becomes how serious was the suicidal thinking,… (Dr Kumar's diagnosis of very severe depression) probably includes very serious risk in terms of suicide.… In terms of the depression the best predictor of what is going to happen is he is going to go on suffering depression."

21. On the fifth day of the hearing, Dr Reveley was recalled to deal with a number of matters which had emerged. In answer to a question from Mr Grundy, counsel for the GMC, about a potentially adverse outcome of disciplinary proceedings, and whether or not Dr I would be able to deal with this adequately and by instructing a legal team, the response was:

"Knowing what I now know about him, I do not think that would be possible. I think he rapidly becomes despairing, depressed. He has no means of supporting himself emotionally and he would become suicidal and I think his risk of suicide is very high. It is statistically known that individuals who mention suicide, who threaten suicide, that is the top risk factor for actually doing it."

When asked by a panel member whether the absence of any serious attempt over time means that the risk has become less, Dr Reveley replied:

"no that does not lessen the risk.… It is in the context of interpersonal conflict or challenge, or some social conflict situation where he has actively considered it.…… I think that the risk of suicide is really real, and probable if he is forced to interact and deal with circumstance that is what happened."

Dr Reveley was also asked about his hope to practise in Australia. She replied:

"He is very open about – and very concrete about what he wants so he is not seeking to hide his wishes. He wants to carry on working because there is absolutely literally nothing else in his life at all, and if you take away his ability to work that he is left with nothing and it will be for his team, his mental health team and the crisis team to other things in place… I definitely, definitely do not think he should (work in Australia or Canada or New Zealand) and I think it is highly inappropriate for him to be thinking along those lines but he is quite open about this and he is not seeking to manipulate or be devious. He is quite open about it".

22. Thus the medical experts were agreed on the profound effect that participation in the process of adjudication on fitness to practice would have upon the psychiatric well-being of the Claimant and the suicide risk which was created.
23. As he was required to do, the Legal Assessor advised the panel on the approach which they were to take when considering the applications and in arriving at a determination. It was a very thorough advice which had been provided in advance to the parties for approval. It is unnecessary to set it out in detail in the context of this judgment. He referred the panel to the guidance on voluntary erasure and the circumstances which had to be weighed in the balance before allowing such an application. He reminded the panel that on the question of voluntary erasure it was a matter for them exercising their own independent judgment, and the requirement to be satisfied that having regard to both the public interest and the doctor's health and the likelihood of return to practice, it was right to do so.
24. His advice on the question of staying proceedings was somewhat more extensive, undoubtedly because it was a less common application considered by an FTPP, and because of the complexity of the legal approach with numerous authorities. After summarising all the relevant cases, in an impeccable summary he indicated the eight principles which could be derived, and which enabled proper consideration as to whether or not the proceedings should be stayed. The sixth of these principles was defined in these terms:

"save in very exceptional circumstances, where the public interest points strongly to the contrary, a hearing should not continue in the face of uncontested medical evidence that the doctor is unable effectively to participate".

25. This advice is said to be significant in the light of the conclusion of the legal assessor at the very end of his advice which was in these terms:

"You have read the medical reports and received the oral testimony of (the experts). You may feel that there is a remarkable level of consistency in their opinion in terms of the fact that the doctor suffers from a recurrent depressive order and in terms of the potential impact on his health, particularly the likelihood of serious harm, if the proceedings are not stayed. You have also received their opinions on Dr I's ability effectively to participate in the proceedings, and you have heard the reactions of Dr Harris and Dr Reveley to questions as to what, if any, steps can be taken to overcome the obstacles to his effective participation."

The decision of the FTTP

26. The panel took some time to consider their determination. It was provided on 27^th June. The determination of a FTTP is an important document because it must set out fully the reasons why a particular decision has been reached, and deal with conflicting arguments and the way in which they were resolved. It must also show that the panel has understood the legal principles to be applied. In this case, the GMC had taken a "neutral" stance through their counsel Mr Grundy, who had not sought to challenge the medical evidence or the approach taken by counsel for the Claimant. Significantly, however, he had made a concession which the panel dealt with at D 7/3 paragraph B of their determination.

"Mr. Grundy made clear that should the panel stay proceedings at some point in the future, it would not be the GMC's application, at any point in the future, that the case should proceed in the absence of Dr I."

27. Dealing first with the question of voluntary erasure, the panel considered three elements "particularly relevant" to Dr I's case: risk to patients, public confidence issues, and the risks to Dr I's health and his ability to instruct counsel. Under the first heading of "risk to patients", after summarising the seriousness of the allegations which the Claimant faced and noting that there was an ongoing investigation into an earlier complaint, they noted the unchallenged evidence of Dr Reveley that he was unfit to practise as a result of his current mental state, had never been fit to practise and never would be in the future. Whilst satisfied that the granting of VE would address the primary risk to patients in the UK with immediate effect, the panel went on to make this observation which has been the subject of significant criticism by Miss O'Rourke:

"However the panel is alarmed by the evidence of Dr I that he wishes to practise in Australia and by his apparent confidence that if his application for VE is granted he will be able to obtain employment in Western Australia. In particular, the panel notes the evidence of Dr Harris that Dr I informed him that he has been in contact with medical managers in Western Australia who have indicated that VE would not affect his ability to work there and if he were to take VE in the UK they would be "willing to take him back".

28. Before addressing the public confidence issue, the panel came to this conclusion:

"The panel considers that the wider public interest would not be best served if it were to grant VE. In the event that a subsequent FTP panel was to find Dr I's alleged shortcomings well founded, and sufficiently serious to justify involuntary erasure, the details would become a matter of public record. The panel considers that this would make it more difficult for Dr I to achieve the stated intention of working overseas as would be the case with the grant of his application for VE. As a consequence a greater degree of protection for patients overseas would be achieved."

29. In relation to the public confidence issue, the panel made this observation:

"There is a parallel interest on the part of the bereaved parents in seeing that any professional culpability is identified and risks appropriately managed."

Under this heading they concluded by saying:

"…Where there are issues relating to the death of a patient and there is a realistic prospect that the doctor will be able to continue working abroad, potentially posing an ongoing risk to patients, the panel is clear that VE would not be adequate to maintain confidence in the regulatory process."

30. Dealing with the risks to Dr I's health and his ability to instruct counsel, the panel noted the extent of the unchallenged evidence which I have highlighted above. They summarised the consensus of the parties to the application in these terms:

"In relation to the hearing, both parties agree that Dr I has the cognitive capacity to instruct counsel and to participate in the hearing, but his depressive condition is such that the stress of the hearing would be likely to (i) undermine his capacity to concentrate and engage with the process and (ii) increase significantly the risk of harmful consequences including suicide. It is very unlikely that he would be able to attend the full hearing and there is no real prospect that his health might improve such that he would be able to participate effectively at some point in the future.… The panel accepted that whilst Dr I did wish to avoid the hearing there was no element of deception or fabrication in his presentation of his symptoms. The panel has therefore accepted the analysis set out above relating to Dr I's inability to adequately participate in the hearing and the likely consequences for his health if he were to attempt to do so."

31. The panel then went on to consider whether or not a modified hearing with special measures would enable adequate participation. It observed that while such measures might reduce the risk of suicide it would not remove the risk completely and that the resultant degree of participation would not constitute effective participation. They recognised that the non-attendance of Dr I at the hearing might mitigate those risks further, but that would be a "grave" step that would prevent him from exercising his fundamental rights to be present and defend himself.
32. In concluding under this heading, the panel stated that the depressive state and suicidal thoughts would be substantially mitigated, though not removed if Dr I were absent from the hearing. Specifically they said:

"With appropriate psychiatric support through the relevant period and particularly when the outcome is announced, the panel considers that the suicide risks could be adequately managed, although it recognises that there is bound to be a residual and fluctuating risk as there has been on an ongoing basis for some years."

33. Their overall conclusion on the question of the application for voluntary erasure was that it was a finely balanced decision,…

"The panel has determined that the public confidence issues, and the obligation to protect patients in another jurisdiction, outweigh the arguments for granting VE on the grounds of health and limitations of Dr I's capacity to defend himself."

34. The panel then turned to deal with the question of staying the proceedings and indicated that they were directing themselves on advice in accordance with the established test in Beckford. They confirmed an understanding of the eight principles set out in the advice of the legal assessor, and acknowledged that in terms of consequences for the Claimant from the stay application, there was little to distinguish the consequences from the VE application, if he was unable to participate effectively in the proceedings at any level and that there would be a risk to Dr I's psychiatric health which would have to be "carefully managed".
35. Their conclusion, which has been the subject of significant criticism by Miss O'Rourke, is in these terms:

"… There are in this case very exceptional circumstances that justify the continuation of the proceedings despite the doctor's inability to participate and the increased health risks. In relation to the protection of patients, the risk to patients is serious. The doctor faces extremely serious allegations in relation to the death of a child resulting from his clinical decisions, and there are other allegations yet to be fully investigated. Further, the doctors own consultant psychiatrist has told the panel that he is not fit to practise. The risk to patients is compounded by the fact, as it appears from the evidence, that Dr I lacks the psychological capacity to respond appropriately to concerns about his performance. Thus Dr I has accepted that he made mistakes which were linked to the death to patients and has been told by Dr Reveley that he should not practice, but yet is resolute in his desire to leave the UK and work elsewhere. If his application for a stay were successful, it is clear that his intention would be to work in Western Australia, where the relative shortage of paediatricians would facilitate his gaining employment even in the light of unresolved issues.… In conclusion the panel has determined that there is a real and significant risk of serious harm to patients if the stay is granted, due to the consequent risk of securing work overseas."

After referring to public confidence in the profession and the regulatory process, and what was described as the "corresponding interest of the bereaved parents that these matters are examined in the public domain", the panel concluded their determination, seemingly on the issue of the stay application, in these terms:

"In all the circumstances, the panel has determined that the combination of significant risk to young patients and the doctor's determination to practice against advice not to do so, makes this an exceptional case in which the public interest overrides the interests of the doctor and it is fair and reasonable for the proceedings to continue.

36. As a consequence of the panel determination, the charges which the Claimant faces, and the question of his fitness to practise will now be determined by a freshly constituted FTPP in the near future.

Judicial review

37. Permission to apply for judicial review was given by His Honour Judge Pelling QC on the papers on 18^th October 2012. In his observations he stated:

"I grant this application with some hesitation, but I do so principally because I consider it arguable that the panel took account of a legally immaterial consideration when reaching its decision namely the need to protect another country's public, and also for the reasons identified in paragraph 1(i) of the grounds (satisfaction for the complainant parents). I consider it is also arguable that the decision is irrational in the public law sense for the reasons identified in paragraphs 1 and 2."

38. Subsequently, as I have indicated, an application to intervene on the part of the family of TW, as interested parties, which was supported by the GMC, was rejected by this court (His Honour Judge Gore QC) on 9^th January of this year.

The legal background

39. The powers and functions of the GMC are derived from the Medical Act 1983 and do not require detailed elaboration. Its role is to protect, promote and maintain the health and safety of the public by regulating medical practitioners. Their regulatory responsibilities which relate to the impairment of fitness to practise of doctors who are registered in the United Kingdom appear in section 35C, and FTPPs which are entrusted with the determination of the question of impairment of fitness to practise have the power to erase, suspend, or to impose conditions.
40. Also within the Medical Act 1983 is a provision that the GMC can make regulations relating to voluntary erasure, including the refusal of such applications (Section 31A).The Act is otherwise silent on the process, but it is set out in full in the General Medical Council (Voluntary Erasure and restoration following Voluntary Erasure) Regulations 2004. Significantly within these regulations is the obligation on the registrar to refer any application made by a registered practitioner for voluntary erasure to an FTP panel whenever there is an outstanding allegation under the Fitness to Practise Rules which has already been referred to such a panel. In other words a practitioner cannot avoid the consequences of allegations of impairment relating to his fitness to practise by simply seeking voluntary erasure.
41. The important material relates to the guidance which is given to such panels. It would appear that within the past three years there have been two versions of such guidance, the second of which was subject to substantial revision. Because issues have arisen as to whether the panel had been influenced by the earlier guidance it is necessary to identify the fundamental differences. The guidance issued in August 2010 and scheduled for review in August 2015 is set out at paragraph 6 in the following terms (with my underlining):

"Decision makers should be satisfied that it is right in all the circumstances to agree to voluntary erasure (and not to proceed with the enquiry proper) before any application is granted. All the circumstances can be divided into three categories:

a the public interest

b the private interests of the complainant

c the private interests of the doctor"

42. Under the heading "the public interest" three elements were identified. They were:

"a. The protection of patients and the public generally from doctors whose fitness to practice is impaired;

b. The maintenance and promotion of public confidence in the medical profession.

c. The maintenance and promotion of public confidence in the GMC's performance of its statutory functions."

43. The earlier guidance then continued by providing more detailed explanation as to the meaning of the public interest, and the private interests of both the complainant and the doctor. Specifically in relation to the private interests of the complainant, the decision maker was encouraged to consider whether the complainant should be contacted for his or her views on whether an application for voluntary erasure should be granted.
44. However in February 2012 the current guidance, proposing a review in February 2017, has significantly altered the definition of "all the circumstances" which now reads:

the public interest

the doctor's health and likelihood of return to practice

45. Thus there is no longer any reference to the private interests of either complainants or the doctor. The guidance also provides a more expansive explanatory note on the three elements of the public interest (which have not changed from the earlier guidance) under the headings protection of patients, public confidence, and the doctor's health and likelihood of return to practice.
46. In relation to public confidence, paragraph 12 provides a more detailed explanatory note:

"Decision makers should consider the extent of harm caused to patients and the potential impact on public confidence should they grant VE. Where there is reason to believe that a doctor's actions may have caused the death of the patient or other significant harm….. there is a strong indicator that VE may not be appropriate "

47. Paragraph 13 provides five bullet point headings in the category relating to the doctor's health which represent legitimate matters for consideration:

the doctor's health

the likelihood of the doctor seeking restoration to the register

the length of time since the doctor last practised

the genuineness of the doctor's desire to cease to be registered

any evidence that the doctor has no intention to practise in the UK or elsewhere in the future

48. The fifth of these is important, because of the contention made in this case that the scope of the GMC's regulatory control is limited to the United Kingdom. A full explanation is provided at paragraph 33 of the guidance:

"Where a doctor expresses an intention to practice medicine either overseas, on a part-time basis, or in private practice in the future this is as equally relevant as were the doctor expresses an intention to practise medicine on a full-time basis in the UK. Whilst the remit of the GMC is confined to regulating doctors in the UK, we have a wider public interest in ensuring the protection of patients everywhere.

49. The current guidance extends to 60 paragraphs overall, compared to a mere 20 paragraphs in the earlier guidance. Clearly it was an evolving process, bearing in mind that voluntary erasure was a relatively new concept. In addition to there being no longer any reference to "private" interests, the explanation to guide the approach to the legitimate consideration of the doctor's health now runs to some 21 paragraphs.
50. There is a further provision in the Medical Act 1983 which requires mention. Under section 35B (2) where a decision has been made relating to a practitioner's fitness to practise, the GMC "may, if they consider it in the public interest to do so, publish or disclose to any person information (relating to that decision)." This provision is relied upon by the Defendant to demonstrate the efficacy of a determination of impairment of fitness to practise, as opposed to granting voluntary erasure, because there is no equivalent provision for voluntary erasure, and it is not self-evident that such a determination would qualify under section 35B(2).
51. In relation to a stay of its own proceedings, the jurisdiction of the FTP panel to take such a course was never in question. A corpus of case law has arisen in this area drawing on the "fairness" test espoused by Neill LJ in R v Beckford (1996) Cr App R 94. Much of it is focused on the more common abuse of process arising from the significant delay between matters giving rise to complaint and their resolution by prosecution. Such principles are well-known and do not require elucidation. A more discrete area has arisen in the context of Article 6 considerations where a party by his physical or mental state or other circumstances beyond his control is unable to have any meaningful involvement in the proceedings which had been taken against him.
52. Helpful guidance on the approach to be taken by a court or tribunal dealing with such an application has been provided by McCombe J in the case of R (on the application of Wotton) v Central Devon Magistrates Court [2003] EWHC 146 (Admin) reflecting the European jurisprudence on the issue:

"….(The) minimum requirements (are) that the defendant must be able to give proper instructions and to participate by way of providing answers to questions and suggesting questions to his lawyers in the circumstances of the trial as they arise."

53. In a Divisional Court case, Brabazon-Drenning v United Kingdom Central Council for Nursing, Midwifery and Health Visiting [2001] HRLR 6, Elias J, in the context of a challenge to the decision of a professional conduct committee not to adjourn a misconduct hearing, made the following observation:

"Save in very exceptional cases where the public interest points strongly to the contrary, it must be wrong for a committee which has the livelihood and reputation of a professional individual in the palm of its hands, to go on with the hearing when there is unchallenged evidence that the individual is simply not fit to withstand the rigours of the disciplinary process."

54. It must be acknowledged that such a case was concerned with a request for an adjournment not the permanent postponement of the case where it was anticipated a hearing may take place in the not too distant future. However the principal of "exceptionality" which formed part of the unchallenged advice of the legal assessor in the present case to the panel, is said to apply to the seemingly more terminal process of a stay application, bearing in mind that a stay can always be lifted at some stage in the future.
55. Elias J considered his earlier observation in a later case which was part of a series of legal challenges arising out of disciplinary proceedings brought in relation to the death of a specific child, namely the Queen on the application of Toth v General Medical Council [2003] EWHC 165 (Admin). In that particular challenge the court found that a Professional Conduct Committee of the GMC had misdirected itself in transferring a serious misconduct case involving a criticism of Dr Jarman, the doctor involved in the death, to a health committee because the doctor's ill-health prevented him from participating in the misconduct hearing, by not excluding erasure as a possible sanction. A preliminary application to stay the proceedings had been made before the committee at first instance but not fully dealt with. In granting relief to the complainant (the child's father) Elias J rejected a submission that he should refuse it on discretionary grounds, and accepted the argument that it was a matter for the committee whether a fair trial could still be held in the absence of the doctor and whether safeguards could be put in place.
56. In Varma v General Medical Council [2008] EWHC 753 (Admin) Forbes J, agreed with a submission that a panel's discretionary decision on such an application for a stay involved an exercise in judicial assessment rather than any conclusion as to facts based on evidence. He further accepted that the reviewing court should be slow to interfere with the exercise of judgment by the specialist panel which turned to a large extent on its assessment of written and oral medical evidence. In that case, whilst the doctor had some compelling evidence as to his inability to participate, it did not all point one way, and the panel decided that sufficient measures could be taken within the hearing to ensure fairness. Significantly, he emphasised continuing responsibility of the panel which could consider the question of effective participation at any stage including during the course of a hearing.
57. In R (on the application of Al Zayaat) v General Medical Council [2010] EWHC 3213 (Admin) a very similar situation arose to the present case, with dual applications made on behalf of the doctor whose mental state had become so fragile that it was said she could no longer participate in the proceedings for fitness to practise determination. The doctor had been responsible for treating baby P, and the subsequent attendant publicity and notoriety had a profound effect on her psychiatric well-being. In the face of clear psychiatric evidence that the doctor was genuinely and involuntarily incapacitated from participating in any hearing, Mitting J held that there was no proper basis for a rejection of an application for voluntary erasure, and that the panel's decision that the doctor was not genuine was perverse. Whilst not authority for the proposition that a finding of genuine involuntary incapacity must necessarily lead to voluntary erasure (the court reserved its view as to whether or not a future panel might decide that the hearing should still go ahead even if a doctor could not participate), it is helpful in confirming that a conclusion on voluntary erasure should be soundly based on the available evidence.
58. As I have indicated above, undoubtedly there is a significant overlap between the approach which must be taken by a panel when considering an application for voluntary erasure, and a parallel application to stay proceedings. Both applications require a balancing exercise, focusing on public interest on the one hand, and the subjective state of the doctor on the other hand in respect of his ability to participate in proceedings. However, it seems to me that ultimately the question of fairness is considered in the context of the stay application. In other words the voluntary erasure application requires a more detailed evaluation of the evidence and an appropriate conclusion, whereas the stay, as Forbes J said in Varma, is more of an exercise in judicial assessment.

The respective submissions

59. The Claimant seeks to challenge the decision to refuse voluntary erasure on the basis that it was irrational and one which no reasonable tribunal properly directed could have reached. Although there were a number of grounds pursued in support of the contention of irrationality, specifically in the course of her submissions Miss O'Rourke QC placed reliance on (1) the stance which was taken by the GMC as prosecutor, which did not oppose the application, (2) an apparent "steer" by the legal assessor towards the grant of VE, (3) the agreed psychiatric evidence that not only was Dr I not fit to practise now or at any time in the future because of his mental state, but also that he was unlikely ever to be able to participate in proceedings, (4) the consideration of a potential risk to patients were the Claimant to practise in Australia, which was outside the remit of the GMC as well as being unsupported as a material risk by the evidence, (5) ignoring the risk of Dr I's suicide were the panel to proceed to a fitness to practise hearing, and (6) the consideration of the interests of the complainant parents as a concomitant part of the public interest, notwithstanding a change in the guidance which removed this as a relevant factor.
60. In relation to the refusal of the stay, it is contended that this was perverse, particularly after the GMC through counsel had indicated that it would not seek to proceed in the absence of the Claimant, were a stay to be granted and the agreed medical evidence that participation on his part was impossible. There was simply no basis, it is said, for finding that this was an exceptional case where fairness could still be achieved notwithstanding the absence of the practitioner.
61. On behalf of the Defendant, Miss Callaghan submits that under the Medical Act 1983 the remit of the GMC is the protection, promotion and maintenance of the health and safety of the public generally, and whilst powers of regulation relate to UK registered doctors only, the "public" cannot be construed so narrowly so as not to affect a doctor who might work overseas. Reliance is placed upon the current guidance and in particular paragraph 33 (see paragraph 48 of this judgment).
62. In arriving at its conclusion on the question of voluntary erasure, the panel gave appropriate weight to all the relevant factors, and this court should be slow to interfere with the decision of a professional body in the best position to assess the evidence and to carry out the necessary balance, and further the panel had a broad discretion in the absence of any identifiable criteria in the regulations when arriving at a decision. Specifically she submits that the bereaved parents, whilst otherwise complainants, are still members of the public whose interest should be taken into account where there are serious allegations of misconduct with serious consequences, and this is not an indication that the panel was misdirecting itself. Because the panel had concluded that the risk of suicide was minimal with appropriate medical support even if the Claimant did not attend the hearing, it was not irrational that the grave restriction on his capacity to defend himself was outweighed by the risk to patients' safety and the damage to public confidence in the profession if voluntary erasure were granted.
63. Miss Callaghan submitted that the present case amounted to "very exceptional circumstances" in view of the public interest, which justify the continuation of the hearing, and the rejection of the application for a stay, notwithstanding the absence of the Claimant.

Discussion

64. It is axiomatic that because a fitness to practise panel has a difficult balancing exercise to perform without any clear guidance when faced with an application for voluntary erasure in these circumstances, a reviewing court should be reluctant to interfere in the absence of any clear indication that the panel has misdirected itself or considered irrelevant matters. To an extent the task of this court has been made easier by the fact that it is not being asked to determine that the panel's interpretation of the evidence was wrong, which is always a difficult matter for judicial review. The evidential conclusions as to what the psychiatrists were saying about Dr I's health and the impact on his participation in the proceedings were unequivocal. It is the application of the balance of all the factors that is under scrutiny and therefore it is immaterial that this court has been unable to consider and evaluate the evidence. That does not necessarily mean that a successful review is more likely, because a tribunal at first instance will always be in the best position to conduct the balance even where the evidence is unchallenged. Further, the FTPP is equipped with the expertise to be able to assess the impact "in all the circumstances" on the public interest and the doctor's health. Accordingly, I have approached the question of irrationality with a considerable degree of caution and circumspection, ignoring any perception that the panel's decision may appear to have been a harsh one from the doctor's point of view.
65. Whilst the determination is extremely thorough and demonstrates that the panel was fully informed on the way in which it should carry out the balancing exercise on the question of voluntary erasure, in fact it is difficult to follow the logical process through to the final part of the determination after the panel has started to deal with the question of "stay of proceedings". For instance, having concluded that in this case there were "exceptional circumstances" that justified the continuation of the proceedings despite the doctor's inability to participate, at letter G and following on page D7/10, the panel proceeds to apply precisely the same considerations (risk to the public and public confidence) in weighing the balance with the doctor's own interests (health and capacity to defend himself) to justify their decision on the stay. In other words, the same reasons given for refusal of the application for voluntary erasure are now expressed to be "exceptional circumstances" without any specific or separate reasoning. That is not necessarily a flaw in the process, because the public interest in investigating or prosecuting any serious allegation will be multifactorial. However it would have been helpful to have understood that this panel saw the stay application as involving an additional layer where it could be said that the fairness requirement was still satisfied notwithstanding what was, in effect, the absence of the doctor.
66. I now turn to deal with the separate criticisms of the decision. First of all, it seems to me that the stance taken by counsel for the GMC at the hearing is immaterial, and should not have been seen as an influencing factor. The reasoning behind the establishment of the Medical Practitioners Tribunal Service was in any event to distance the judicial body from the prosecuting body, and the independence of the FTPP is always ensured. There is nothing perverse in ignoring a concession seemingly made in favour of a doctor by counsel appearing on behalf of the GMC. Be that as it may, the furthest it could be said that counsel went in this case was to adopt a "neutral stance", which in my judgment was entirely appropriate in all the circumstances. Thus I reject the criticism of Miss O'Rourke QC in this respect.
67. Further, I do not read the legal assessor as giving a steer to the panel towards a particular conclusion. In fact, although his observation on the direction in which the medical evidence was pointing was accurate, in all respects he made it plain that both decisions were matters entirely for the discretion of the panel, after providing a very careful and detailed summary of the principles to be applied. Accordingly I can see no basis for criticising the panel in this regard.
68. When dealing with what has been described as the "Australia" issue, that is the expressed intention of Dr I to practise in Australia, it seems to me that the panel was properly taking into account the guidance at paragraph 33, even though this is not stated. The use of the word "obligation" at paragraph B on page D7/8 is unfortunate, because this appears to overstate responsibility of the regulatory authority where its remit is limited to the United Kingdom. However it must be a valid consideration, in appropriate cases, that a doctor who was seeking voluntary erasure in respect of his UK registration is only doing so to avoid an adverse finding of impairment of fitness to practise, and has every intention of moving his practice overseas, carrying with it a continuing risk to patients. This is not tantamount, in my judgment, as Miss O'Rourke has said, to imbuing the GMC with an extraterritorial role, or seeking to have its orders impact overseas.
69. Thus a declared intention to work in Australia amounts to a valid consideration for public protection purposes. However, it seems to me that if a panel is to attach weight to such a consideration it should only do so in a case where there is compelling evidence that not only has a doctor expressed a wish or an intention, but also that it is a realistic one. In this case, the undisputed medical evidence was that such an expressed intention was little more than a distant hope, and that Dr I was unfit to practise at any time in the future by reason of his mental ill-health. It is correct that the panel appear to find some evidence that it was not beyond the realms of possibility on hearing from Dr Harris, as they state in paragraph G (D7/5), after learning that the medical managers in Western Australia would be willing to take him back notwithstanding a direction of voluntary erasure. The difficulty, it seems to me, is that because Dr I's expressed intention was sufficiently serious to "alarm" the panel, and indeed formed the rationale for the refusal of both the voluntary erasure application and stay, such a limited evaluation of the realism of the prospect does not inspire confidence that the panel has considered the balance of the medical evidence, and indeed whether or not a determination on directing voluntary erasure, which expressed the clear evidence that Dr I was incapable of working as a doctor at any time in the future (as counsel for the GMC was advocating should be included), would have been sufficient to have addressed the risk to overseas patients. This would have been particularly important in view of the finding made by the panel that voluntary erasure would eliminate any risk to UK patients.
70. It would be difficult to say that this insufficiency, with an absence of any clear understanding as to how and why the panel was using this particular consideration to refuse voluntary erasure, rendered the overall decision irrational. However there is a more obvious indication that the panel took into account irrelevant matters which compounds the approach which they have taken when considering public interest, this time in the context of public confidence (letter C D7/6). After acknowledging the wider public interest that serious matters of misconduct should be examined in the public domain by an independent tribunal, the panel goes on to refer under public confidence to the "parallel interest" of the bereaved parents in seeing that any professional culpability is identified and risks adequately managed. There will always be a wider public interest in the scrutiny of serious matters of misconduct and it is difficult to see how per se such a factor would weigh significantly in the balance any more than in every other case for voluntary erasure. However by bringing the bereaved parents into consideration, in my judgment there is a real concern that the panel has seen this as an influential or tipping factor in what has been described as a "finely balanced" case. Because of the independence of the FTP panel from the GMC, and the identified role of the GMC as a prosecutor without any involvement of complainants, who were originally entrusted with the obligation of bringing the prosecution, the interest of the bereaved parents could not have had any relevance under the new guidance. In fact it is conspicuously ignored. This will undoubtedly seem harsh to Mr and Mrs W, who were refused an earlier application to intervene in these proceedings. However as a principle it is underpinned by the understanding that the regulatory authority will always in suitable cases pursue prosecutions of misconduct and impairment of fitness to practice with vigour, uninfluenced by the wishes of patients or their families. This is logical when the often justifiable grievances of patients or relatives can be explored in other jurisdictions, such as the coroner's court and the civil litigation process.
71. Miss Callaghan submits that the public interest must always include, if only by implication, the interest of complainants, and the reference in the determination is so brief and passing that it could not be said to have represented any influential factor for the panel. I do not agree. Whilst a determination which was more obvious and straightforward might allow for a reference of this nature, the very fact that this was a difficult finely balanced decision for the panel, and the new guidance specifically ignored the private interest of the complainant, in my judgment this panel was taking an irrelevant matter into consideration.
72. On the decision to refuse voluntary erasure, there is a more serious concern that the panel has come to an irrational conclusion in the context of their assessment of the unchallenged medical evidence that Dr I could not participate in the hearing without significant consequences to his health. Having found that Dr I was genuine, and not seeking to manipulate the process, their conclusion, which was based upon an acceptance of Dr Reveley's evidence that intensive support measures, (even though Dr I would be absent from any hearing), would reduce but not eliminate the risk of suicide, that such suicide risks could be adequately managed does not identify any sound evidential basis. It is a matter of some gravity that a quasi-judicial process would carry with it for an individual a residual suicide risk, and therefore, once a prosecutor had indicated that it would not proceed with any fitness to practise allegation in the future if Dr I was absent following a stay, in my judgment a very compelling reason was required if such a factor was not to tip the balance substantially in favour of the granting of voluntary erasure.
73. I am quite sure that this panel was doing its very best in a difficult situation to ensure that serious allegations in which the potentially avoidable death of two young children were implicated would be properly ventilated in a fitness to practise hearing, and that the public interest was a strong and compelling one. However, it was not overwhelming, and never would be in an application for voluntary erasure because the same considerations of public ventilation will always exist. This is a case, however, where the doctor's health considerations were even more compelling, especially where there was an identifiable risk of suicide or serious self-harm, and a conclusion that the former outweighed the latter required a far more cogent justification than that which was given. Accordingly I find that the decision to refuse voluntary erasure was an irrational one, and a conclusion which no tribunal properly directing itself on the identified unchallenged evidence could have arrived at.
74. The question of staying the proceedings is a separate one, which would have been unnecessary to consider if the panel had chosen to direct voluntary erasure. However it is still necessary within the context of this judicial review to determine whether the refusal to grant a stay would have been lawful if the application for voluntary erasure had been refused.
75. In this regard, consideration must be given to the undisputed medical evidence that Dr I would have no meaningful participation in any hearing, and that fitness to practice allegations would be heard in his absence. In circumstances such as these, as the legal assessor pointed out to the panel, the usual principle that on an application to stay proceedings for abuse a stay should only be granted sparingly, was reversed. A considerable layer of unfairness was established on the part of the doctor whose reputation was at stake, even if he was unlikely ever to practise again for medical reasons, were the matter to proceed in his absence, and the normal approach would be to grant such a stay, unless there were exceptional reasons or circumstances which applied.
76. Having accepted that this was the approach, the FTP panel in my judgment did not identify any exceptional circumstances over and above the reasons already given for refusing voluntary erasure. Further, although they had already referred (without identifying) in the context of the voluntary erasure determination to the measures which could be put in place to adequately manage suicide risk, at no point have they sought to identify measures to ensure fairness if the proceedings were to continue in the doctor's absence. As Dr I was providing no meaningful input to his legal team, even if a representation could be maintained at any fitness to practise hearing, the evidence was not capable of significant challenge and it would have been, as counsel has put it, "all one-way". It seems to me that this is a wholly different situation to that which was presented to the court in Varma, where the doctor's inability to participate was in any event at best equivocal.
77. A significant factor, however, on the stay application, is the concession made by counsel for the GMC that it would not proceed to a fitness to practise hearing in the absence of the practitioner at some stage in the future. Doubtless Mr Grundy saw this as a case where an effective hearing required the doctor to answer the charges and to provide some meaningful explanation as to why he administered the treatment in the way in which he did. Whilst the requirement for public protection might demand the hearing of such a nature in the case of the younger doctor who simply played no part in the fitness to practise process, and where compulsory erasure was the likely outcome, in the context of this case, at least at the stage of the FTP hearing, the public interest may have been seen by the GMC as requiring a full ventilation with the presence or participation of the doctor who was highly unlikely to practise in the future in any event.
78. In my judgment, whilst a specialist panel is fully equipped to deal with a stay application, and to make the judicial assessment required as referred to in the case of Varma above, there is not the broad range of discretionary outcomes in a case such as this where there is uncontested evidence which leads to only one possible conclusion, that is the absence of any participation in a hearing. In such circumstances, where the panel has relied upon exceptionality as here, not only must those circumstances be shown to be relevant and compelling but it is also necessary to identify ways in which fairness can still be achieved, and compliance with the doctor's Article 6 rights ensured.
79. Unfortunately in this case the panel has failed to do either such as to render the decision on the stay of the proceedings also irrational on Wednesbury principles. It is insufficient, in my judgment, simply to reserve the possibility of reviewing a stay at any point in the future conduct of the proceedings, when there was no indication that the position was likely to change.

Conclusion

80. It must follow that the panel's decision in relation to both voluntary erasure and the stay application should be quashed. Clearly the matter will have to be remitted and considered afresh. However, as I have already stated, because this is not a case where the evidence is likely to change, and my finding is based upon a conclusion that the panel arrived at a decision which no reasonable tribunal properly directed could have arrived at, and as Miss O'Rourke indicated in her submissions, it may be appropriate to consider a mandatory order. A different situation here prevails to that which faced the court in Al-Zayaat, where a finding was made that the evidential conclusion was perverse.
81. However this is not a matter which was fully argued before me, and I am prepared to receive further submissions in writing, or orally at the handing down of this judgment. It may well be that the remission of this case to a fresh panel with the benefit of this judgment and no further evidence, will lead to a certain conclusion without the need for a specific mandatory direction.
82. I will also receive any further submissions on the issue of costs or other ancillary orders.