England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		21 October 2014

1. MR JUSTICE DOVE: This is an appeal brought under sections 38 and 40 of the Medical Act 1983 as amended. There are a number of procedural matters which I need to deal with before turning to the substance of the judgment.
2. Firstly, at the hearing of this matter the Appellant applied, again, for an adjournment of the hearing. The matter had been adjourned previously on 17 June 2014 when it was called on before Collins J and the court order that was made at that time made it plain that there would be no further grants of applications for adjournments of this matter. A further application to adjourn had been made and refused on 1 October 2014 by Master Gidden on the basis of papers submitted by the Appellant and Respondent. The basis of that application and, indeed, of the application before me, was that the absence of the Appellant from the UK presented difficulties in relation to obtaining instructions from him and that therefore it was only just that the proceedings should be adjourned. Given the previous order that had been made in this case, the overriding objective, the limited prejudice to the Appellant and the need for these proceedings to be concluded, I rejected that application and proceeded to hear the matter.
3. At the outset of the hearing the second procedural issue which emerged was that there was an application to amend by the addition of a ground five, which I shall turn to in due course. As far as I could see, no substantive injustice was to be caused by the inclusion of ground five and, indeed, Miss Eleanor Grey QC, who appeared on behalf of the Defendant, was able to absorb the substance of that ground and provide further written submissions as well as oral submissions on the point. I therefore granted permission for that ground to be added.
4. After the hearing and on mature reflection, bearing in mind the issues which had emerged during the course of argument, Mr Martin Forde QC (who did not represent the Appellant at the hearing before the Respondent) communicated to me that ground three of these proceedings was no longer to be before me and was abandoned.

The background facts

5. The Appellant in this case was the subject of a sting operation undertaken by investigative journalists, who arranged for actors to pose as patients and present themselves to his general practice clinic, making complaints of various symptoms. During the course of the consultations with them they were wired with cameras and in effect, therefore, the consultations were the subject of covert surveillance. What transpired at those consultations and the filming of them formed the subject of the charges which were made by the Respondent to this appeal and the subject of the hearing which commenced on 27 September 2013 is the subject of these proceedings.
6. A number of charges that were made against the Appellant were not proved. The charges which were proved related to two patients in particular. Firstly, the charges related to a patient known in the proceedings as AC. He was consulted twice. The first occasion was on 30 June 2011 and there were a series of charges against the Appellant, which were found proved, in relation to the conduct of that consultation. It was found proved that the Appellant had failed to maintain eye contact with the patient and listen attentively to him. It was further proved that he had failed to obtain details of weight change and rectal bleeding, including the nature of that bleeding, for the purposes of understanding the patient's complaints. It was found proved that he had failed to undertake a rectal examination and failed to refer the patient for further assessment. The Panel found proved that the patient had not been diagnosed by the Appellant and, further, that the Appellant had failed to make an adequate record of the consultation and manage it appropriately. All of these charges related to the clinical conduct of the Appellant.
7. Patient AC attended for a further examination on 2 August 2011. In respect of that consultation, it was found proved that the Appellant had failed to take a further medical history and failed to assess or diagnose the patient or properly manage the consultation.
8. Importantly for the purposes of these proceedings, there was a further charge based upon the records which the Appellant had kept of that examination. It was found that the Appellant had inaccurately recorded in Patient AC's notes that he had examined him when, in fact, he had not. In the records of the patient the Appellant recorded: "git-soft".
9. The contention that the note was inaccurate was founded on the filming of the consultation which showed that, in fact, the Appellant had not undertaken any examination which could found the making of that record. This was an allegation which was strongly resisted by the Appellant. He initially contended that the film had, in fact, been doctored or edited so as to exclude the part of the consultation which would have substantiated the note which he had taken.
10. The Appellant was asked about this allegation in his evidence in-chief. What is said is recorded in the transcript of the proceedings within day six at page 44 as follows:

"Q. With the benefit of hindsight and having seen the video footage, having reflected on the last case, having attempted to enhance the electronic notice board still, what you do say now about whether you conducted an examination or not?

A. It is -- I always -- that is the way I work, if I have written something, I should --

Q. Keep your voice up.

A -- I must have done it. Okay. If I have written something I must have done it. But it is a long time ago so I am just speaking from memory. So a possibility I might not have done it, but I am just speaking from my memory . . .

A. What I said is the way I work, I always, when I do something I write it. But here, it was quite some time ago, so I am speaking from my memory. I am speaking from my memory and I might have not done it. I might have done it, I might not have done it.

Q. Just pause. You might have done it, you might not have done it?

A. Yes.

Q. Let us explore then how this entry appears written in here. If it is the case that you might not have examined this patient, how do you account for the fact that we have an entry here which is the same entry or the first part of the entry from 30 June 2011 at the top of the page, when we know you did examine the patient, did you write gastrointestinal tract was soft and no viscera was palpable? Explain to the Panel how did that entry get there?

A. Because I examined the patient and that is why the entry has gone [in].

Q. You said a few moments ago in essence, 'Maybe I did and maybe I did not,' so obviously if you did examine that will explain it, but what if you did not?

A. If I did not then I would not write it. I am just speaking from my memory. If I have not done it then I would not write it, but I am just saying, I am not a dishonest person, I would not try to mislead anybody, but what I am saying is that if I have written it, then I have done it. But I am just speaking from memory. I cannot say anything else."

11. As might be imagined, the Appellant was cross-examined about this issue at some length. In the transcript of day seven at page 68 he stated that his examination of the patient was missing from the film of the consultation. Later on in the transcript of day seven at page 82 he said that he might not have examined the patient.
12. Turning to the second patient, who was the subject of the charges, known in the proceedings as JB, these charges related to a single consultation. It was found that the Appellant had failed to ask what his presenting symptoms were or take an adequate history, to assess or diagnose the patient, to provide treatment or properly manage the consultation.
13. The conclusions in relation to clinical practice, which were the subject of these charges, were themselves the subject of contentious expert evidence. On behalf of the Respondent an expert, Dr Isaac, was called, who concluded that the Appellant's standard of care in relation to all of these charges "did seriously fall below a minimal standard of reasonable professional competence". In his report he declared that where there was a "range of professional opinions", he had indicated that potential range in his report. This observation was part of a suite of declarations made to accompany the expert report.
14. The expert who was called by Appellant, Dr Bennett, made a similar declaration in relation to the fact that where there was a range of professional opinion he had indicated that range within the observations in his report. At the hearing there was an attack by the Respondent upon Dr Bennett's detachment and objectivity, based on the fact that he was known to the Appellant and had, indeed, worked with him on a fairly regular basis. It was suggested to him in the course of cross-examination, therefore, that his observations lacked independence and objectivity and that, therefore, less or little weight could be attached to them.
15. Having heard both the factual and expert evidence, the Panel then received submissions on all of the matters relevant to this preliminary and fact-finding stage of the hearing process. It is important to note the Appellant's submissions in relation to dishonesty during the course of the hearing. I quote from what was said on the Appellant's behalf on day nine of the hearing at page 34 of the transcript on that day as follows:

"What he presented is evidence from the EMIS system which is irreconcilable with the footage. The only explanation logically there could be for the disparity in timing is that there was a delay on the part of Dr Inayatullah in pressing L for leave, that he was doing something on 2 August which distracted him and, so having done something else, he went back to the computer, he either then completed the medical record or at least then pressed L and I accept that that is a logical explanation. What the EMIS system printout has done is provided him with a genuinely held, honestly held belief that the footage that was presented by people he is entitled, is he not, to believe were trying to trap him? He is entitled to be suspicious. It supported his belief that there had not been a full representation of the whole consultation and so I have spent a lot of time causing witness to be called and cross-examining them and I am not going to go through the evidence like my learned friend, it is there to be read. There are inconsistencies between them but I accept there is no proof that it has been interfered with. It is not for me to prove it, of course. When you have uninterrupted, continuous video footage I accept there is a good inference that you have seen the whole thing without some analysis."

16. The submissions on behalf of the Appellant continued a little later as follows:

"I acknowledge the reality that confronted with that evidence and confronted with the logical explanation for the EMIS timings that you will come to the conclusion that you have seen the full footage and with the benefit of hindsight you have seen movement in Dr Inayatullah's position.

Had he not softened his position he would have been criticised from the other side of the room for showing no insight. He softened his position and he is criticised for inconsistency. He is between a rock and a hard place, but having made that concession, necessarily, he exposes himself to the obvious cross-examination, 'Well, Doctor, if that is the full footage, and if you therefore haven't examined the patient, what possible explanation could there be for you recording that other than you having a dishonest motive?' You may think that is something that strikes at this gentleman practitioner's heart, an allegation of dishonesty that he finds impossible to countenance, and scratch his head as he does he becomes increasingly defensive. We have seen the manifestation of that in the answers he has given when repeatedly cornered (as my learned friend would put it). He simply cannot improve, I suspect, on the words I use, 'he works constructively, 'I am not a dishonest person. I have written it down. I wasn't trying to mislead the locum doctors. Why would I? There is no one else I envisage reading the notes. Why would I seek to mislead them? If I wrote it down, I simply can't explain it, I must have done it and if I didn't it's inexplicable.' The one thing of all things he says, and I invite you to accept from him, he did not do so dishonestly.

You may think at times while he was giving his evidence he showed a genuine concern for patients. You may think at times, although he was difficult to follow, he became utterly credible and focused when talking about medical matters. This is a man who has devoted himself to the care of others over decades and dishonesty, we invite you to conclude, is not in his make-up."

17. Having heard those submissions and others as well on behalf of the Respondent, the Panel were then in receipt of directions in relation to the fact-finding exercise which they needed to undertake at that stage of the hearing. Having been directed about the burden and standard of proof, the Legal Assessor went on to provide them with a direction in relation to the topic of probabilities. The direction is to be found at page 41 of the transcript on day nine and was as follows:

"Probabilities:

The more serious the allegation the less likely it is to have occurred, therefore the stronger the evidence should be before you conclude that the allegation has been proved. Dishonesty is a particularly serious allegation. However it does not mean that it must be proved to a higher standard of probabilities. As confirmed in the Doherty case of 2008, the standard of proof is finite and unvarying. However, certain circumstances call for heightened examination of the strength and quality of the evidence which includes the inherent unlikelihood of the occurrence taking place, the seriousness of the allegation and the serious consequences which could follow if found proved. It is a matter for you to determine which features apply in this case."

18. The Legal Assessor also provided the Panel with a direction in relation to expert evidence. This appears at page 43 of day nine of the transcript as follows:

"Expert evidence:

Dr Isacc and Dr Bennett have both provided expert evidence. They were instructed to provide an opinion on whether the standard of care provided by Dr Inayatullah met the standard expected from a reasonably competent general practitioner. However, it is only part of the evidence before you. In reaching a determination on the facts you must consider all of the evidence. Experts have a duty to assist you in reaching a determination on the facts by giving independent, objective and unbiased opinion on matters within their expertise. This duty overrides any obligation to the person from whom he receives his instructions or by whom he is paid. It also includes an obligation to inform all parties and the Panel if the expert's opinion changes from that contained in the report served as evidence.

Drs Isaac and Bennett have expressed their opinion and you are entitled to have regard to this opinion evidence in coming to your own conclusions about this aspect of the case. However, you should bear in mind that having given the matter careful consideration, which will include an assessment of their independence, expertise, conclusions and the quality of the analysis which informs their opinion you may accept the evidence of the expert in whole or in part or reject the expert evidence in whole or in part. It is for you to decide whose evidence and whose opinions you accept and the weight to be attached to such evidence. In this regard expert witnesses are no different from non-expert witnesses."

19. The Legal Assessor then went on to give a direction about the definition of dishonesty, about which no complaint is made by Mr Forde. It followed the well-known criminal law direction to juries from the case of Ghosh.
20. Having received those directions, the Panel then retired and on 8 July 2013, on day 11 of the hearing, they delivered their conclusions. It is unnecessary for me to quote those conclusions in full but there are important aspects of them upon which these proceedings turn and which I set out as follows. Firstly, in relation to the expert evidence, in the transcript at page 2, the following conclusions are expressed:

"Dr Isaac is an experienced expert witness who has given opinion evidence for both the GMC and the defence in hearings before this Tribunal. He also continues to work as a GP three days a week.

Dr Bennett is also an experienced GP. Dr Bennett worked and continues to work in your practice as a locum and on one occasion has had dinner at your home. This was the first case in which Dr Bennett has acted as an expert witness.

The Panel has found both experts overall to be credible. Their views and opinions were clear and they gave lengthy and detailed evidence to assist the Panel. Dr Isaac varied the degree to which he supported or agreed with your clinical practice. He was willing to change his position when new information came to light. Dr Bennett relied largely on his own clinical experience and almost invariably supported your clinical practice.

The views of the two experts on some occasions were similar or the same. Where they differed the Panel looked to the relevant supporting evidence and its understanding of their different professional backgrounds, knowledge and clinical experience to enable it to decide on which evidence to rely. The Panel did consider that on occasions Dr Bennett's evidence indicated that it was not underpinned by the impartiality and independence which would be expected from an expert witness in such circumstances; eg his reference to intuitive assessments. The Panel was not convinced by his evidence on intuition particularly in circumstances where a proper medical history had not been obtained."

21. The Panel then reached conclusions about the evidence of the Appellant. Their conclusions are expressed on pages 2 to 3 of the transcript of day 11 as follows:

"You gave very lengthy evidence. The Panel noted your long experience as a GP and that you were the only permanent GP at the practice albeit supported by locum assistance. It took into account that giving evidence is a stressful experience and that English is not your first language. The Panel also recognised your sense of grievance in being the subject of undercover filming of which you had no knowledge at the time. Nevertheless the Panel agreed with Mr Ferguson's description that you had not 'done yourself many favours' in giving your evidence. Its own view is that on a number of occasions your answers to the questions put to you were evasive, repetitive and unreliable and that your position changed on several occasions; eg as to whether you had carried out an examination of Patient AC at the second consultation. The Panel took the view that even when taking into account appropriate allowances for factors such as the stress of giving evidence and any difficulties in comprehension, parts of your evidence were not credible and this undermined your reliability as a whole."

22. In relation to the disputed examination and the record of that examination, the Panel concluded as follows:

"Patient AC told the Panel that you did not carry out an examination on him. The Panel has previously determined Patient AC to be an honest and credible witness.

The video footage does not show you carrying out an examination on Patient AC during this consultation. Both Mr Alex Kiehl and Mr Bartley King told the Panel that the footage had not been tampered with. The Panel has previously determined these witnesses to be honest and credible.

You told the Panel initially that you had definitely carried out an examination on Patient AC. You subsequently told the Panel that you may not have carried out an examination but that if it was recorded in the notes then you must have carried out an examination. It was submitted on your behalf that the EMIS system suggests the length of the consultation was longer than that indicated by the footage itself. The Panel noted the EMIS system is doctor operated and therefore although indicative of the length of the consultation, it is not conclusive. In any event the Panel could not infer that an examination had taken place irrespective of the length of the consultation.

Apart from your own evidence the Panel has not been provided with any evidence based on your belief that there has been a conspiracy against you involving tampering with the footage of the consultation. It noted that despite the unsuccessful application for an adjournment made in February this year, on the basis that this allegation was categorically denied and time was needed to obtain technical evidence, no such evidence was adduced to support your allegation that the footage had been tampered with. The Panel is satisfied that it has been provided with the entire recording of the consultation based on the credible and reliable witness evidence and the footage itself. The Panel determined that you did not carry out an examination but recorded in the patient notes that you had done so."

23. In respect of the issue in relation to whether or not that had been dishonest, the Panel concluded as follows:

"Other than your assertion that you are not dishonest, the Panel noted that you are were unable to provide an explanation as to why you could have failed to perform that examination yet record that you had done so. The Panel has applied the test and has determined that what did you did was dishonest by the standards of reasonable and honest people. It found that you did realise that by recording in Patient AC's notes that you had performed an examination when you had not was dishonest by those standards, especially as you stated in evidence that you had made this note contemporaneously."

24. Each of the matters related to clinical practice and judgment were found to be proved by the Panel in the light of Dr Isaac's evidence and their own assessment of the factual evidence which was before them. Having made those findings of fact, the Panel were then obliged to go on to consider the question of misconduct. They found that misconduct was proved, both in relation to those clinical matters which were the subject of proved charges, and also in relation to the dishonesty findings.
25. Having found misconduct, they then, as they had to do, went on to consider the question of impairment. As part of that assessment, they learnt of the findings of a Fitness to Practise Panel in 2006 which had led to the imposition of conditions on the Appellant. The determination on sanction in that case included the following quotation which was drawn to the Panel's attention. It appears at page 18 of the transcript of day 11:

"'The Panel has decided in view of the serious nature of the facts found proved, that it is necessary to take action against your registration. The Panel has found that you failed to provide an adequate standard of care for one patient, Ms LG. Your assessment of her condition was seriously below the standards expected of a competent registered medical practitioner; you did not keep clear, accurate, legible and contemporaneous medical records; there was no evidence of a management plan; you did not record decisions made or the information given to the patient.'"

26. Bearing in mind that conclusion from 2006 and the findings which they had made themselves, the Panel's conclusions in relation to impairment are set out in the transcript of day 12 of the hearing at page 11 as follows:

"In light of the matters that brought you before the Fitness to Practise Panel in 2006, the Panel has concluded that your actions and omissions in relation to Patient AC and Patient JB were not isolated incidents in an unblemished career as you have previously been informed of the failures in your clinical management and patient care. Those previous failures included: your failure to keep clear, accurate, legible and contemporaneous records, no evidence of a management plan, not recording decisions made or giving information to a patient which were similar to the matters in respect of which this Panel has made findings of facts. Furthermore the consultations in relation to Patient AC and Patient JB were separate events and, put together with the circumstances which led to your fitness to practise being found impaired in 2006, demonstrate a pattern of your acceptable approach to consultations notwithstanding those who reported on your performance in 2009 had concluded that this approach has been remediated.

This Panel does not consider that your actions are easily remediable and has determined that you have not fully demonstrated that you have taken appropriate remedial steps. The Panel has been provided with documentary evidence of the courses you have undertaken, reflective learning log, your CPD documentation, appraisal documentation and the positive testimonial evidence on your behalf from professional colleagues. The Panel has noted the testimonial evidence provided by patients but it does not appear that the patients were aware of the specific allegations made against you at these proceedings. In any event, the Panel has concluded that none of this current and historical documentary evidence outweighs your misconduct to the extent that it can be said that your fitness to practise is not impaired when balanced against the wider public interest.

The Panel has found that you have breached a fundamental tenet of the medical profession by failing to provide a good standard of practice and care. The Panel has determined your far reaching clinical errors and failures of clinical management in the three consultations could have had serious consequences for these patients. Further the Panel concluded that your actions had brought the profession into disrepute and that your integrity could not be relied upon in view of the finding of dishonesty against you. All four of the criteria outlined by Dame Janet Smith for a finding of impairment were therefore satisfied.

The Panel was concerned at the lack of insight which you demonstrated through the proceedings. At the fact finding stage the Panel previously determined that on a number of occasions your answers to the questions put to you were evasive, repetitive and unreliable and that your position changed on several occasion. The Panel noted this approach was reflected in the 'significant events' relating to the consultation on 30 June 2011 recorded by you in your appraisal documentation which indicated significant differences from the oral evidence which you gave during the hearing. The Panel also considered that this entry was another indicator of your lack of insight in that you put the blame on others rather than accepting any responsibility yourself.

In the light of these factors, the Panel cannot be satisfied that there will be no repetition of your misconduct. Furthermore, and in any event, the Panel considers that the gravity of your misconduct is such that public confidence in the profession and regulatory process would be undermined if a finding of impairment were not made in the particular circumstances of this case. For these reasons the Panel has determined that your fitness to practise is impaired by reason of your misconduct."

27. The Panel then proceeded to hear submissions on the appropriate sanction, given the findings that they have made. They concluded, having examined all other options, that the only appropriate sanction which fell to be imposed in this case was erasure. The transcript at page 4 of day 14 records their reasons for doing so:

"Having determined that suspension would be an insufficient response to your misconduct the Panel concluded that erasure is the only appropriate sanction. Although in principle the clinical aspects of your misconduct are remediable there is limited evidence that you are capable of remediation as this requires insight which you have persistently failed to demonstrate. The Panel concluded that your un-remedied misconduct is fundamentally incompatible with continued registration as a doctor.

The Panel took into account the non-exhaustive list of features listed in paragraph 82 of the ISG, which may justify erasure and is of the view that the following five factors from that list apply to your case:

- 'Particularly serious departure from the principles set out in Good Medical Practice, ie behaviour fundamentally incompatible with being a doctor.

- A reckless disregard for the principles set out in Good Medical Practice and/or patient safety.

- Abuse of position/trust . . .

- Dishonesty, especially where persistent and/or covered up.

- Persistent lack of insight into seriousness of actions or consequences.'

The Guidance makes it clear that erasure may be the appropriate sanction if any of the listed factors are present. In your case the Panel found that these five factors individually and collectively demonstrate that the removal of your name from the register is the only appropriate and proportionate measure.

Accordingly, the Panel has determined to direct that your name be erased from the Medical Register."

The law

28. As set out above, this is an appeal under section 40 of the Medical Act 1983 where the Appellant seeks a quashing of the decision of the Respondent pursuant to section 40(7). In the case of Cheatle v General Medical Council [2009] EWHC 645 (Admin) Cranston J set out the nature of this jurisdiction as follows:

"12 . . . The appeal is by way of a re-hearing. The relevant practice direction offers no guidance as to what this means: see CPR 52 PD. 116 (2). Clearly it is not an appeal confined to a point of law, but neither at the other end of the spectrum is it a de novo hearing, where the court hears the witnesses giving evidence again. The basis of intervention appears to be broader than that for judicial review.."

29. Cranston J then went on to review potential tension which had been identified between the case of Meadow v General Medical Council [2006] EWCA Civ 1390, [2007] QB 462 and the case of Raschid and Fatnani v General Medical Council [2007] EWCA Civ 64, [2007] 1 WLR 460. He concluded that the apparent tension between the approaches of the courts in those cases were readily reconcilable as follows:

"15 . . . The test on appeal is whether the decision of the Fitness to Practise Panel can be said to be wrong. That to my mind follows because this is an appeal by way of rehearing, not review. In any event grave issues are at stake and it is not sufficient for intervention to turn on the more confined grounds of public law review such as irrationality. However, in considering whether the decision of a Fitness to Practise Panel is wrong the focus must be calibrated to the matters under consideration. With professional disciplinary tribunals issues of professional judgment may be at the heart of the case. Raschid was an appeal on sanction and in my view professional judgment is especially important in that type of case. As to findings of fact, however, I cannot see any difference from the court's role in this as compared with other appellate contexts. As with any appellate body there will be reluctance to characterise findings of facts as wrong. That follows because findings of fact may turn on the credibility or reliability of a witness, an assessment of which may be derived from his or her demeanour and from the subtleties of expression which are only evident to someone at the hearing. Decisions on fitness to practise, such as assessing the seriousness of any misconduct, may turn on an exercise of professional judgment. In this regard respect must be accorded to a professional disciplinary tribunal like a Fitness to Practise Panel. However, the degree of deference will depend on the circumstances. One factor may be the composition of the tribunal. In the present case the Panel had three lay members and two medical members. For what I know the decision the Panel reached might have been by majority, with the three lay members voting one way, the two medical members the other. It may be that some at least of the lay members sit on Fitness to Practise Panels regularly and have imbibed professional standards. However, I agree with the submission for the appellant in this case that I cannot be completely blind to the current composition of Fitness to Practise Panels."

30. The concept of impaired fitness to practise is to be derived from section 35C of the Medical Act 1983, which provided at the time when the decision was reached as follows. Section 35C(2):

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

(a) misconduct;

(b) deficient professional performance;

(c) a conviction or caution in the British Islands for a criminal offence, or a conviction elsewhere for an offence which, if committed in England and Wales, would constitute a criminal offence;

(d) adverse physical or mental health; or

(e) a determination by a body in the United Kingdom responsible under any enactment for the regulation of a health or social care profession to the effect that his fitness to practise as a member of that profession is impaired, or a determination by a regulatory body elsewhere to the same effect."

31. The approach to the question of impairment of fitness to practise was also set out helpfully by Cranston J in the case of Cheatle at paragraphs 19 and 20 as follows:

"19. Whatever the meaning of impairment of fitness to practise, it is clear from the design of section 35C that a panel must engage in a two-step process. First, it must decide whether there has been misconduct, deficient professional performance or whether the other circumstances set out in the section are present. Then it must go on to determine whether, as a result, fitness to practise is impaired. Thus it may be that despite a doctor having been guilty of misconduct, for example, a Fitness to Practise Panel may decide that his or her fitness to practise is not impaired.

20. As to the meaning of misconduct and deficient professional performance, Jackson J addressed some aspects of these concepts in Calhaem v General Medical Council [2007] EWHC 2606 (Admin); [2008] LS Law Medical 26:

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

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

(3) 'Deficient professional performance' within the meaning of 35C(2)(b) is conceptually separate both from negligence and from misconduct. It connotes a standard of professional performance which is unacceptably low and which (save in exceptional circumstances) has been demonstrated by reference to a fair sample of the doctor's work.

(4) A single instance of negligent treatment, unless very serious indeed, would be unlikely to constitute 'deficient professional performance'.

(5) It is neither necessary nor appropriate to extend the interpretation of 'deficient professional performance' in order to encompass matters which constitute 'misconduct'."

32. Further consideration was given to the nature of this kind of proceedings by Foskett J in the case of Fish v General Medical Council [2012] EWHC 1269. In particular his distillation of the authorities in relation to this type of proceedings is set out at paragraphs 32 to 35 as follows:

"32. So those are the parameters for considering the issues raised in this appeal in relation to the findings. It is plain that where the conclusion of the FTP is largely based on the assessment of witnesses who have been 'seen and heard', this court will be very slow to interfere with that conclusion. Nonetheless, the court has a duty to consider all the material put before it on an appeal in order to discharge its own responsibility, appropriate deference being shown to conclusions of fact reached on the basis of the advantage of having seen and heard the witnesses. Where this court does not feel disadvantaged by not having heard the witnesses, and the issues can be addressed with little emphasis on the direct assessment of the evidence by the Panel, it is in a position to take a different view in an appropriate case.

33. To the extent that reliance is placed in support of an appeal on what is alleged to be wrong or misleading advice by the Legal Assessor, the approach of this court was reviewed by the Court of Appeal in Gopakumar v GMC [2008] EWCA Civ 309. Tuckey LJ (with whom Sir Anthony Clarke MR, as he then was, and Jacob LJ agreed), having referred to the General Medical Council (Legal Assessors) Rules 2004, said this at paragraph 30:

'By rule 2 the legal assessor is required to advise on any question of law referred to him and to intervene to advise the Panel where there is a possibility of a mistake of law being made or where he learns of any irregularity in the conduct of the proceedings.

34. He continued as follows:

'31. So the differences between judge and jury in a criminal trial and members of a Panel and its legal assessor are obvious. The Panel is not a jury. They take legal advice from the assessor but they are not bound to follow it. The assessor is not a judge. He gives legal advice but does not give directions as such and does not sum up the evidence to the Panel.

32. These differences alone show that the analogy with criminal proceedings is not a good one. But this conclusion is confirmed by the two cases relied on by the Judge. Libman v GMC [1972] AC 217 was principally concerned with the test to be applied by the Privy Council (then the appellate body) when considering whether to upset a finding made by the then Disciplinary Committee of the GMC. But at page 221 when summarising the general propositions to be drawn from earlier decisions of the Privy Council Lord Hailsham said:

'4. The legal assessor who assists the committee at its hearing is not a judge, and his advice to the committee is not a summing up, and no analogy with a criminal appeal against conviction before a judge and jury can properly be drawn. The legal assessor simply advises the committee … on points of law … The committee under its president are masters both of law and of the facts and what might amount to mis-direction in law by a judge to a jury at a criminal trial does not necessarily invalidate the committee's decision. Where a criticism is made of the legal adviser's . . . advice the question is whether it can fairly be thought to have been of sufficient significance to the result to invalidate the decision . . . .

In R (Campbell) v GMC [2005] EWCA Civ 250 this court approved Lord Hailsham's propositions as still governing the approach that any court should adopt to decisions made by the then Professional Conduct Committee of the GMC. Mr Wilby argued that things have changed, at least since Libman was decided, because at that time the Disciplinary Committee was comprised entirely of doctors. As a result of the Human Rights Act a lay element has had to be introduced so the committees are now more like juries than they used to be. I do not think this makes any difference. It assumes that doctors have a greater knowledge of the law than the lay members who are now selected to sit on the Panel.'

33. So unfettered by any criminal analogy was there anything wrong with the legal assessors direction in this case? Was it unfair? Does it cast doubt upon the Panel's decision?'

35. Those cases set the essential parameters within which an appeal against the findings made is to be considered by this court. In relation to the Legal Assessor's advice, the question is whether it was unfair such that it casts doubt on the Panel's decision."

33. Against the background of that exposition of the relevant law, questions were raised by Mr Forde in relation to the advice which the Panel was given by the Legal Assessor in this case, to which I shall turn in greater detail when considering his grounds. However, at this stage it is important to note that questions were in particular raised by Mr Forde in relation to the direction about probabilities. The foundation of the answer to the correct approach to that issue is to be found in the case of Re B [2008] UKHL 35. That case was a case concerned with allegations leading to children being taken into care. Questions had arisen in those proceedings as to whether the standard of proof varied in accordance with the gravity of the allegation which was being made against the person against whom findings were sought. That issue was addressed in the opinion of Lord Hoffmann at paragraphs 13 to 15 as follows:

"13 . . . I think that the time has come to say, once and for all, that there is only one civil standard of proof and that is proof that the fact in issue more probably occurred than not. I do not intend to disapprove any of the cases in what I have called the first category, but I agree with the observation of Lord Steyn in McCann's case (at 812) that clarity would be greatly enhanced if the courts said simply that although the proceedings were civil, the nature of the particular issue involved made it appropriate to apply the criminal standard.

14. Finally, I should say something about the notion of inherent probabilities. Lord Nicholls said, in the passage I have already quoted, that —

'the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability.'

15. I wish to lay some stress upon the words I have italicised. Lord Nicholls was not laying down any rule of law. There is only one rule of law, namely that the occurrence of the fact in issue must be proved to have been more probable than not. Common sense, not law, requires that in deciding this question, regard should be had, to whatever extent appropriate, to inherent probabilities. If a child alleges sexual abuse by a parent, it is common sense to start with the assumption that most parents do not abuse their children. But this assumption may be swiftly dispelled by other compelling evidence of the relationship between parent and child or parent and other children. It would be absurd to suggest that the tribunal must in all cases assume that serious conduct is unlikely to have occurred. In many cases, the other evidence will show that it was all too likely. If, for example, it is clear that a child was assaulted by one or other of two people, it would make no sense to start one's reasoning by saying that assaulting children is a serious matter and therefore neither of them is likely to have done so. The fact is that one of them did and the question for the tribunal is simply whether it is more probable that one rather than the other was the perpetrator."

34. In a regulatory context this issue about the balance of probabilities was considered by this court and Mitting J in the case of R (Independent Police Complaints Commission) v Hayman [2008] EWHC 2191. Having quoted some of the speech of Lord Hoffmann which I have set out above, Mitting J went on to assess the issue in the context of a regulatory hearing as follows:

"17. Lord Hoffmann's formulation accepts that there are civil proceedings in which the criminal standard, or something very like it, applies - for example, football banning orders which involve infringement of a Treaty right of freedom of movement (cf Goff v Chief Constable of Derbyshire [2002] QB 1213) - but where in civil proceedings the standard of proof is the balance of probabilities a single standard applies. The possibility that, as a matter of common sense, a limited degree of flexibility in application remains was accepted by Lord Carswell in In re Doherty at paragraphs 27 and 28, but in terms which effectively strip it of legal content.

18. Lord Carswell approved observations of Lord Justice Richards in R (On application of N) v Medical Health Review Tribunal [2005] EWCA Civ 1605, in which he had observed at paragraph 62 that there was flexibility in the application of the standard and that - pursuant to that flexibility - the seriousness of consequences of a finding could be taken into account. He expressed approval of those observations but added a qualification which he described as small but which, on my understanding of his words, effectively stripped it of legal consequence. In paragraph 28 he observed:

'It is recognised by these statements that a possible source of confusion was the failure to bear in mind with sufficient clarity the fact that in some contexts the court or tribunal has to look at the facts more critically or more anxiously than in others before it can be satisfied to the requisite standard. The standard itself is however finite and unvaried . . . The seriousness of the allegation requires no elaboration. A tribunal of fact will look closely into the facts grounding an allegation before it before accepting that it has been established. The seriousness of consequences is another facet of the same proposition. If it is alleged that the bank manager has committed a minor peculation that could entail very serious consequences for his career, so making it the less likely that he would risk doing such a thing. These are all matters of ordinary experience requiring the application of good sense on the part of those who have to decide such issues. They do not require a different standard of proof or especially cogent standard of evidence, merely appropriately careful consideration by the tribunal before it is satisfied of the matter which has to be established.'

19. In that last sentence Lord Carswell, in my opinion, laid down the true proposition of law.

20. Of course in disciplinary proceedings the tribunal must look with the greatest care at accusations which potentially give rise to serious consequences. But in determining whether or not they occurred, it applies a single unvarying standard, the balance of probabilities. If satisfied it is more likely than not that the facts occurred, then it must find them proved and draw appropriate conclusions as to sanction."

35. The Appellant, through Mr Forde, placed reliance upon the case of Sharma v General Medical Council [2014] EWHC 1471 (Admin), a decision of HHJ Pelling QC sitting as a judge of the High Court. That was a case which involved an allegation of dishonesty and in examining the law HHJ Pelling QC set out the following at paragraph 19 of his judgment.

"19. It was common ground between the parties that for a finding of dishonesty to be made, the GMC must prove that (a) the act or omission concerned was dishonest by the standards of reasonable and honest people and (b) that the practitioner must have realised that what he or she was doing was dishonest if applying those standards. The onus of proof rests throughout on the GMC and the applicable standard of proof is the civil standard – that is the balance of probabilities. However, as Lord Nicholls observed in Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 at 586:

'The balance of probabilities standard means that a court is satisfied that an event occurred if a court considers that on the evidence the occurrence of the event was more likely than not. In assessing the probabilities, the court will have in mind as a factor to whatever extent it is appropriate in the particular case that the more serious the allegation the less likely it is that the event occurred and hence the stronger should be the evidence before court concludes that the allegation is established on the balance of probabilities. Fraud is usually less likely than negligence… Built into the preponderance of probabilities standard is a generous degree of flexibility in respect of the seriousness of the allegation.'"

Mr Forde submitted, and I agree, that the principle identified by Lord Nicholls of Birkenhead in Re H applies in relation to allegations of dishonesty such as those that gave rise to the findings of dishonesty in this case. It is noteworthy that the legal assessor did not draw the attention of the FTPP to this point, which is one that all fact-finding tribunals applying the civil standard of proof are bound to have regard to when considering an allegation of dishonesty. In my judgment he ought to have done so. However, on the facts of this case, in my judgment this might, and I emphasise the word 'might', have made a difference in relation only to one of the allegations of dishonesty. In my judgment it was immaterial to the others for reasons that will become apparent. "

36. The additional ground which was raised by Mr Forde and for which I granted permission for him to argue, was the absence of a direction in relation to good character. He drew my attention to the criminal law case of R v Moustakim [2008] EWCA Crim 3096. In that case the proper approach to a direction in relation to good character was set out in paragraph 11 as follows:

"11. Mr Darlington refers us to the case of R v Lloyd [2000] 2 Cr App R 355, which itself cites the well-known case of R v Vye (1993) 97 Cr App R 134, where Lord Taylor LCJ said this:

'To summarise, in our judgment the following principles are to be applied.

(1) A direction as to the relevance of his good character to a defendant's credibility is to be given where he has testified or made pre-trial answers or statements.

(2) A direction as to the relevance of his good character to likelihood of his having committed the offence charged is to be given, whether or not he has testified, or made pre-trial answers or statements.'

The case of Lloyd quotes a further passage from Vye at its page 479 as follows:

'Provided that the judge indicates to the jury the two respects in which good character may be relevant, ie credibility and propensity, this Court will be slow to criticise any qualifying remarks he may make based on the facts of the individual case.'"

37. In that case, having scrutinised the judge's direction, it was accepted that it was inadequate and, moreover, as a result of the absence of a satisfactory good character direction, the court concluded that the conviction in that case was unsafe.
38. Against the background of those legal principles I turn now to consider the grounds which are raised by Appellant in this case.

The dishonesty finding

39. I start with considering the grounds related to the dishonesty finding because Mr Forde conceded that if this finding stood it would have serious implications, both for the prospects in relation to overturning the conclusions that the Panel reached in relation to impairment and also in relation to the appropriateness of the sanction which was imposed. I deal with two grounds under this heading together because ground two related to the direction which the Legal Assessor gave on the question of probabilities and the standard of proof, bearing in mind the nature of the allegation which was being considered.
40. Ground five pertains equally to the dishonesty finding because it is an allegation that the absence of a good character direction to the Panel rendered the proceedings unfair and therefore the finding in relation to dishonesty unreliable.
41. I deal first with the ground which relates to the direction on the approach to the standard of proof and the question of probabilities. Mr Forde submitted on behalf of the Appellant that a stronger direction was mandatory or clearly required in this case as it could have been the case that the record which was made by the Appellant and was the subject of the allegation could have been the result of an honest mistake on his part. On that basis it was submitted that the direction which the Legal Assessor had given did not go far enough and was insufficiently full in relation to the dishonesty allegation.
42. I am unable to accept that submission. I am satisfied that, when read as a whole, the standard of proof and probabilities direction which was given in this case was both appropriate and also shaped for the specific circumstances of the case. The Assessor, as will be noted, refers directly to the seriousness of the allegation of dishonesty which was in play before the Panel and that is related in the direction which the Assessor gave to the requirement for a heightened scrutiny of the strength and quality of the evidence in relation to that matter.
43. The Appellant, through Mr Forde, criticises the absence of a cross-reference to the dishonesty allegation but, in my view, there is nothing wrong with the direction and fairness did not require anything further. As I have said, it specifically directed itself to the allegation in relation to the honesty of the Appellant about which the Panel needed to reach factual findings.
44. In any event, the point which is made by Mr Forde as to whether or not the record could have been made as a result of an honest mistake is, in my view, at best moot. The Appellant may, in particular in closing submissions, have emphasised the equivocation in relation to whether or not that record related to an examination which had actually occurred, but it needs to be borne in mind that the Assessor summarised the Appellant's case to the Panel at day nine, page 42 as follows:

"Although memory is affected by the passage of time, this case concerns certain features which go beyond a failing memory. In particular Dr Inayatullah does not accept that the recording of his consultation with Patient AC on 2 August 2011 is the complete footage. He asserts that the recording has been tampered with, which is in stark contrast to the evidence you have heard from the GMC witnesses. The evidence on this issue is diametrically opposed and it is not possible to reconcile both sides. Your assessment therefore of a witness's credibility and reliability will be central to your determination of the facts."

45. That summary of the Appellant's case proceeded without complaint by the Appellant or his representative at the time when it was made. In my view the Assessor is not obliged to advise about every conceivable possibility or every potentially available conclusion that might be reached by the Panel and the summary of the Appellant's case, bearing in mind the passages of the transcript which I have set out above, was entirely fair. Therefore, the direction which she gave in relation to the standard of proof and the issues of probabilities dealt with the important points in the case and in my view provided the Panel with fair and proper guidance as to how they should reach their conclusions.
46. I turn then to the complaint made about the absence of any direction in relation to the Appellant's good character. It is submitted on behalf of the Appellant that, by analogy with the position in the criminal law, a good character direction was essential in this case in relation to both limbs which might arise in a criminal context, as set out in the passage from Moustakim which I have set out above. I am unable to accept that submission. Whilst it might not have been inappropriate to give such a direction, the real question in this case is whether fairness required it. As is clear from the principles in the cases which I have set out above, the analogy with criminal proceedings is not one which is close-fitting. These are not proceedings which are identical and raise the same issues as to legal soundness which a judge's direction to a jury may. There is, as the authorities make clear, a distinction to be drawn between experienced panel members -- and here there were two lay members and one who was medically qualified -- and a jury and the instruction or advice which either might need will differ as a result of that context. Whilst it would be wrong to say that good character would not be an issue in all cases that come before the Respondent, it is a reasonable observation to say that in far more cases than might be the case in a criminal context, those who appear before the Respondent will have a good and unblemished character which is being impeached by those proceedings.
47. In my view, the fact that the Appellant presented to the Panel as a recognised medical practitioner and, subject to the charges, fit to practise, is an obvious part of the backdrop of the proceedings in this case. The two limbs of the criminal good character direction, namely the impact of good character on the credibility of his evidence and its impact on his propensity as a qualified doctor to commit the offence in this case, namely to lie, would be both clear and obvious to the Panel without the formality or necessity of a direction to render the proceedings fair.
48. I am therefore satisfied that the absence of such a good character direction was not a legal error in this case. I do not consider there was any obligation on the Legal Assessor to give one. I have reached that conclusion without needing to consider the further submissions which were made by Miss Grey in this respect, namely the absence of a request from the Appellant's representative that a good character direction should be given and her submissions about the potential tactics which might have been involved in that stance related to a concern that the 2006 findings should not be disclosed at that stage to the Panel on the basis that, at the fact-finding stage, those 2006 findings would not have been available to them.
49. Bearing in mind the way in which the case was run at the hearing, and also the Appellant's performance when he gave evidence, there was in my view nothing wrong or inappropriate about the finding. The Panel were correctly directed, in my view, as to how to approach that matter. True it is that strong and cogent evidence would be required to prove what was a serious allegation, but here the Panel had the unequivocal evidence of the record which was made in the patient's notes by the Appellant and also the unequivocal evidence of the film. The Appellant had upped the stakes in relation to that latter material by claiming that the film had been in some way fabricated. His evidence from the transcript was, as the Panel properly characterised it, evasive, repetitive and, as a result, unreliable and lacking credibility in relation to this issue.
50. In my view, therefore, there is no basis upon which the finding of dishonesty can be properly legally questioned.

Clinical findings

51. In the light of the conclusions I have reached about the dishonesty findings, these are necessarily of diminished significance in the overall assessment that might be reached in relation to impairment. Nevertheless, I consider that it is necessary for me to reach some conclusions on ground one which remains before me.
52. Grounds one and three in the case as originally pleaded relate to the findings about the Appellant's criminal practice. Following the hearing and on further reflection, as I have set out above, Mr Forde indicated that he no longer wished to pursue ground three. Ground one remains live. In his post-hearing submissions the point that is made by Mr Forde on behalf of the Appellant is in particular that the Panel should have grappled with why they rejected Dr Bennett's evidence and why his view did not reflect the view of a reasonable body of medical opinion. In that connection the submission is linked to the well-known standards to be derived from the medical negligence cases of Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 and Bolitho v City and Hackney Health Authority 1997 3 WLR 1151.
53. Mr Forde submits that in that Dr Bennett was supporting the Appellant in relation to his clinical practice, then several, but by no means all of the charges should not have been proved, in particular where Dr Bennett continued to support the Appellant's clinical practice. To my mind the answer to this submission is clear. Firstly, both experts have framed their reports, as I have set out above, expressly against the bracket of the reasonable body of medical opinion upon which Mr Forde relies. Thus they have both taken that issue into account in the formulation of their evidence. What the Panel did is entirely clear from the reasons which I have set out above. They rejected Dr Bennett's evidence. They concluded, as set out in those reasons, that his evidence was not always underpinned by the impartiality and independence which they would have expected of a reliable opinion in the case. They could not accept his reliance on intuition in relation to some of the charges as a substitute for taking a proper medical history.
54. Furthermore, many of the allegations related to matters about which, in my view, the Panel were entitled to form their own opinions, having had the benefit of viewing the films of the consultation and seeing the witnesses who had been involved in those consultations. They were matters of judgment which were properly within the province of the Panel and I have formed the conclusion that their findings were entirely reliable. There is, therefore, no substance in this ground.

Sanction

55. The final ground which I need to deal with, ground four, relates to the sanction which was imposed at the end of the proceedings. In my view, this ground, in the light of the conclusions I have reached, is unarguable. Once the findings of dishonesty and the failings of clinical practice stand, then it is clear, having reviewed, as the Panel did, the relevant guidelines, the conclusion that erasure was an appropriate approach is unimpeachable. I bear in mind it is important for me in the context of these proceedings not to seek to re-sentence the Appellant. In my view there was nothing wrong with the approach which was set out in the Panel's reasons and no basis to disturb the sanction of erasure which they imposed.

Conclusion

56. For all of the reasons which I have set out above, the Appellant's grounds of challenge in this case must be dismissed.
57. MR MANT: My Lord, I am grateful. The GMC seeks its costs. Do you have a copy of the schedule?
58. MR JUSTICE DOVE: I don't.
59. MR MANT: Perhaps if I can hand one up. (Handed). There is one thing to be added to that and that's my fee for attendance today, which is £450 plus VAT. Doing the mental arithmetic, I think that makes it £540.
60. MR JUSTICE DOVE: I'm going to hold you to that. That makes your total £13,307.80. Sorry, I've added it up wrong, entirely my fault. It's £14,307.
61. MR MANT: I apologise, my Lord. May I just check the schedule that I handed up because it may be that there are some --
62. MR JUSTICE DOVE: I'm looking at the page dated 16 June 2014.
63. MR MANT: That explains it. There's another schedule here.
64. MR JUSTICE DOVE: So is that to be added on?
65. MR MANT: I apologise, my Lord --
66. MR JUSTICE DOVE: I'm going to hand it back to you.
67. MR MANT: Could I be permitted to just make a phone call because what strikes me is that it may be the case that there is a schedule for the adjourned hearing and a separate schedule for the rest because there are two different figures and I wouldn't want to do the GMC out of their full costs claim. It will only take me five minutes to take some instructions.
68. MR JUSTICE DOVE: Let's deal with the principle. Mr Forde, are there any issues that you want to raise in relation to the principle in respect of costs?
69. MR FORDE: My Lord, no. It seems to me that costs should follow the event. I haven't taken instructions on quantum.
70. MR JUSTICE DOVE: Let's leave whether or not -- because what I'm going to do, if there's no argument about principle of the costs, then the order is going to at least say that the Appellant should pay the Defendant's costs. The next issue is whether or not I can put a figure in there and at the moment it doesn't seem that I can. So what I would suggest we do is just park that issue for a moment to see whether further progress can be made in relation to that which might lead to a figure being agreed or it might not.
71. MR FORDE: I hope it would be agreed.
72. The other issue relates to the costs of the adjourned hearing and when I applied to Mr Justice Collins I made it clear that I was conceding -- I appeared on that occasion pro bono but, given the lateness of the application -- in fact, there was at that time no fully argued skeleton even in place -- the likelihood would be that the court would order the costs thrown away in respect of the adjourned hearing as well.
73. MR JUSTICE DOVE: But that just gets rolled into the costs order that we're going to make anyway, doesn't it?
74. MR FORDE: Yes, we need to check that that has happened.
75. My Lord, can I make two observations. In relation to your Lordship's judgment, there is reliance upon the Legal Assessor's summary of my client's evidence which is day nine, page 42, letter H, over to day nine, 43, letter A. I am in no way seeking to go behind the judgment, but certainly that's a very strong statement of certainty rather than perhaps the refusal that my client actually exhibited. It would be sufficient for my purposes, particularly as your Lordship indicated there was no objection to the fact that there was an absence of a character direction, if your Lordship could mention that neither Miss Grey nor myself appeared at the hearing below.
76. MR JUSTICE DOVE: Absolutely. I have no difficulty in correcting --
77. MR FORDE: It's a question of professional pride.
78. MR JUSTICE DOVE: Yes, I will ensure that when the transcript comes for perfection, that point is noted. I will also, as I omitted to do and realised as I was completing -- and I'm saying this so that hopefully this appears on the transcript too -- make clear the date of the commencement of the hearing. It seemed to me a detail I ought to add in.
79. MR FORDE: My Lord, I am grateful.
80. My Lord, I am instructed, if only to preserve my client's position, to apply for permission to appeal. Your Lordship will know it's CPR 52.3 and the note to the White Book at 1849 to 1850 sets out five reasons why it's best made to your Lordship. My Lord, the only three potential grounds of interest to the profession as a whole relate to the inherent probability direction which your Lordship, in keeping with another judges, has rejected as a statement of principle. Your Lordship has found, in relation to the competing views of the experts, that the Flannery-type direction isn't necessary and this panel did enough. Perhaps the only real point from a professional's perspective and potentially of public interest is how fatal is, in these circumstances, the absence of a character direction where dishonesty is an issue.
81. My Lord, that's the best I can come up with, having listened carefully to your Lordship's judgment, which is comprehensive, but, as I said, I am instructed to attempt to preserve my client's position and that's why I make the application.
82. MR JUSTICE DOVE: I understand why you make the application, Mr Forde, but I reject it. There is nothing, it seems to me, either interesting as a matter of law or having a reasonable prospect of succeeding in the Court of Appeal on the basis of the absence of the good character direction for the reasons I have given in the judgment.
83. Thank you very much indeed for your help. Could you convey my thanks also to Miss Grey and thank you very much indeed for providing in a timely way your response to the matters after the hearing, which was very much appreciated by me and helped me to ensure that the judgment was delivered, which I appreciate will disappoint the appellant, but it was important, in my view, to get the judgment to him as soon as we could.
84. MR FORDE: My Lord, yes. Thank you.
85. My Lord, housekeeping. Can we take it that, unless your Lordship hears from us, that the relevant part of section 35 is as quoted in your Lordship's judgment?
86. MR JUSTICE DOVE: That was how I left it, so if I don't hear from you to the contrary I will assume that it wasn't amended at the relevant point of time in the case. The element of amendment doesn't make any difference --
87. MR FORDE: No, it's just to get the quotation.
88. MR JUSTICE DOVE: -- but for the sake of the record.
89. MR MANT: My Lord, one final point. Can we take it that it would be costs to be assessed, if not agreed, if Mr Forde and I are --
90. MR JUSTICE DOVE: That's a good point, Mr Mant. What I suggest is that you go away now and see if you can agree a figure and if you can, then place that in an order which should be forwarded to my clerk for me to sign off on. If you can't agree a figure, then I'm not going to undertake a summary assessment because it seems to me the case has gone on for more than a day in various ways, both in respect of this hearing and also in respect of the adjournment. So for that reason it will be detailed assessment if you can't agree a figure, but obviously it makes good sense if it can be agreed.
91. MR FORDE: Yes, thank you.
92. MR JUSTICE DOVE: Thank you very much.