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
		16th October 2014

1. MRS JUSTICE McGOWAN: Dr Kofi Adu brings this appeal by virtue of section 40 of the Medical Act 1980 against the determination dated 20th December 2013, of the Fitness to Practise Panel of the Medical Practitioners' Tribunal Service of the General Medical Council, that the determination that his fitness to practise was impaired by reason of his deficient professional performance and further that his name should be erased from the medical register. On 20th December 2013 a Fitness to Practise Panel of the Medical Practitoners' Tribunal Service of the General Medical Council found that Dr Kofi Adu's name should be erased from the medical register. It determined that his fitness to practise was impaired by reason of his deficient professional performance. By virtue of section 40 of the Medical Act 1980 he now seeks to appeal against those findings.
2. Section 40(1) and (7) set out the route to this court from that decision and the manner in which this court should approach the appeal. In essence this court should allow the appeal if the decision was wrong or if there was such a procedural unfairness in the conduct of the hearing as to render that determination flawed.
3. The original ground of appeal, as drafted by Dr Adu himself was that:

"The Tribunal's decision was against the weight of the evidence, the evidence was not strong enough, so the Tribunal's decision warrants a retrial."

4. In support Dr Adu served a skeleton argument dated 31 January 2014. In that he made a number of contentions: (a) he alleged that he had not been given ample time to prepare for the first assessment in 2007 as he was involved in other litigation.

(b) that he had been the victim of bias in the fitness to practise proceedings.

(c) that amendments made to the tests of competence results amounted to a material irregularity.

(d) that the legal assessor should have recused himself due to "actual or potential" bias.

(e) that an error over the status of a certificate should not have been accepted by the Tribunal and in doing so they had improperly withdrawn an important issue of fact and

(f) he complained that restrictions on his licence to practise made earlier had in fact caused "de-skilling" and had an adverse impact on his performance.

5. This appeal was originally listed before Warby J, who ordered that further details of the matters in the skeleton argument be drafted and served.
6. Those further details were not in fact produced on time, despite an extension being granted. Dr Adu had had difficulty in finding and more particularly funding representation. This was eventually achieved and Mr Gun Cunningham was instructed (only last week) and has drafted a full skeleton. No point is taken on the lateness of service of that skeleton and, if required I grant a retrospective extension of time for service. In any event the respondents to this appeal have not been unduly prejudiced by such late service and the appeal proceeds accordingly.
7. The actual appeal did not strictly follow the original grounds or their amplified form in the original skeleton but the grounds as set out in Mr Gun Cunningham's skeleton are clear and the appeal proceeded upon the three grounds as identified in that skeleton.
8. Given the expertise and specialism of those who sit on such a Fitness to Practise Panel and the wider public interest in maintaining public confidence in the medical profession this court must be particularly careful before interfering and special respect should be given to their findings and decisions. Authority for that proposition is found in Raschid v General Medical Council [2007] EWCA Civ 46 at paragraphs 19 and 20. In that case, Laws LJ said:

"As it seems to me the fact that a principal purpose of the Panel's jurisdiction in relation to sanctions is the preservation and maintenance of public confidence in the profession rather than the administration of retributive justice, particular force is given to the need to accord special respect to the judgment of the professional decision-making body in the shape of the Panel."

Again at paragraph 20 he said:

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

9. So it is against that background and the processes laid down in the CPR 52.11 that I remind myself that the appeal should be allowed if the decision of the Panel was wrong or unjust because of a serious procedural or other irregularity in the proceedings.
10. Turning to the facts in this appeal in 2006 Dr Adu was working as a paediatrician and was referred to the General Medical Council by his then employer, Barking NHS Trust on four grounds.

(a) not following clinical guidelines

(b) inadequate record keeping

(c) poor communication and

(d) not seeking advice from senior colleagues.

11. The history of the action taken by the Trust is set out in substantial detail, and I do not repeat it here, at page 12 of Volume 1 of the hearing bundle which contains the letter giving notice of hearing from the General Medical Council to the appellant dated 8 April 2013.
12. In December 2006, as part of the narrative, the General Medical Council invited him to attend to be assessed. He agreed to that proposition and the assessment was carried out in December 2007. Again, a very full report was prepared and that can be found behind tab 4 of Volume 1 of the hearing bundle and in particular at page 503, paragraph 7.15 is a series of recommendations. It is right to observe at this stage that Dr Keane and Dr Ahmed played significant roles in the formulation of that assessment. There had apparently been a dispute due to be heard by an Employment Tribunal but it was settled between the parties, as I understand it, in 2005. I have not been given the details of that dispute nor was the Panel who heard the issue of fitness to practise.
13. The report at the end of the assessment of Dr Adu contained adverse findings and it was considered that Dr Adu was only fit to practise on a limited basis and that he should continue "at the level of a pre-membership trainee".
14. Dr Adu gave undertakings on 24th August 2008, set out in detail at page 529 of the bundle but most importantly among which, at paragraph 6 on page 530 is an undertaking "to formulate a personal development plan specifically designed to address the deficiencies in the following areas of my practice." Ten such areas were identified and itemised.
15. Reassessment was invited in 2011 and that was carried out in February 2012. Again, the report sets out the process of assessment and the final conclusions that can be found at page 560 of the bundle. That report recommended that Dr Adu cease to practise. It found no improvement from the earlier findings despite what is described as 4 year's remediation. In due course the matter was referred to the Fitness to Practise Panel.

The Hearing

16. The Panel sat from the 8-22 May 2013. Dr Adu was present but was not represented.
17. The Panel's determination is set out in detail in its report at page 17 of the bundle but in essence and very much in shorthand, it found that the appellant's fitness to practise was impaired by reason of his deficient professional performance. It concluded that the appropriate sanction, in the public interest, was erasure from the medical register.
18. The Panel was constituted in its usual form, namely a combination of medical practitioners and lay representation. It had appointed to it, again, as is common practice, a legal assessor, a qualified lawyer whose function was to advise the Panel but not to form part of it or play any role in its decision making functions.

Ground 1

19. On the first day of the hearing the legal assessor brought a matter to the attention of the Panel. He advised them of a personal experience which had involved a failing on the part of another paediatrician in another hospital 9 years earlier in 2004, that failing occurring in the treatment of his, the legal assessor's daughter. That matter was raised in private but in the presence of Dr Adu and that part of the proceedings is set out at page 74 of the hearing bundle. Page D1/1 in the internal pagination of the transcript. The bringing of that matter to the attention of the Panel and the parties was described in the appellant's submissions as arising out of an abundance of caution. It was certainly a cautious step and presumably one taken to avoid any subsequent criticism, if it had not been raised at that preliminary stage but had emerged later.
20. The details of that experience do not need to be rehearsed here, save that in 2004 the legal assessor's child was treated in an apparently unsatisfactory manner by a paediatrician in a hospital in West London. There is no real or apparent link to Dr Adu or as I understand on the evidence to any hospital at which he has ever every trained or worked.
21. The matter was raised and considered by the Panel at the beginning of the hearing. Dr Adu did not apply to remove the assessor and accordingly the Panel and counsel for the General Medical Council raised the matter and asked that it be considered as though it had been raised by Dr Adu. It is accepted by the respondents to this appeal that Dr Adu's "acquiescence" is not to be taken as a waiver. He was not represented and I do not treat it as such.
22. Counsel for the General Medical Council submitted that the test that the Panel should apply in deciding whether it was appropriate for the legal assessor to continue was the test which was laid down in the authority of R (on the application of Mrs Val Compton acting on behalf of Community Action for Saveraken Hospital v Wiltshire Primary Care Trust [2009] EWCA (Admin) 1824.
23. It is important to note that here, in this appeal, entirely properly, it was not argued that there was actual bias, the question rests solely on the doctrine of apparent bias and that forms ground 1 of this appeal.
24. In Wiltshire Cranston J dealt with bias and that is set out from paragraph 81 although the important passages are at paragraphs 87 to 91. I intend to cite them in some detail not because the recitation of authority is necessarily always helpful in a judgment but in these few paragraphs the learned judge reviewed all the previous authorities in an extremely concise and helpful way. Cranston J at paragraph 87 set out:

"The essence of the doctrine of apparent bias is that justice must be seen to be done. Both parties agree that the crucial question is whether the fair minded and informed observer, having considered the facts, would conclude there was a real possibility of bias..."

That proposition of course comes from the case of Porter v Magill [2001] UKHL 67. He went at on paragraph 88 to discuss the more recent authorities and to add to the concept of a fair-minded and informed observer:

"That construct can be assumed to have access to all the facts that are capable of being known by members of the public generally..."

Again reliance was placed and authority taken from the case of Gilles v Secretary of State for Work and Pensions [2006] UKHL 2 and Hellow v Home Secretary [2008] UKHL 62. In that case Lord Hope had said that the fair-minded and informed observer was not to be confused with the person who has brought the complaint. She had a measure of detachment, assumptions that the complainant makes are not to be attributed to the fair-minded and informed observer unless they could be justified objectively. At paragraph 89 Cranston J discussed the case of R v Gough [1993] AC 646. That was a case in which the advice was given to a bench of lay magistrates by a justices' clerk.

25. It is right, and indeed as Cranston J went on to discuss at paragraph 90, that advice given in the circumstances of a justices' clerk advising the justices is capable of vitiating the decision if there is real, which it is not alleged here, or even apparent bias. Paragraph 91:

"In my view the principle is clear: the bias of advisers is capable of vitiating a decision when there is a real possibility that it has adversely infected the views of the decision-maker. That seems to me to turn on at least three considerations. First, there is the nature of the advice itself. Advice to my mind falls along a spectrum from the provision of information, which may or may not have a bearing on the ultimate decision, to a strong recommendation that a particular course be taken. Secondly, there is the matter to which the advice pertains. That may be tangential to the decision to be taken, or it may be an essential component without which no decision is possible. Thirdly, there is the relationship between the adviser and the decision-maker and whether it is so close that there is a real possibility that the bias of one will infect the other."

26. It is important to note that in the Wiltshire case, the facts of which are very different from this, a connection by marriage between the adviser and an interested party was not discovered until after the event. Nonetheless in that case the court concluded that the test of apparent bias had not been made out as a fair-minded and informed observer would be able to look at the decision-making process and appreciate that the connection in that case had not coloured the outcome.
27. They could see, on the facts of that case, that the Board had in fact.

(a) read the report which was fair and accurate.

(b) appreciated that report included responses unfavourable to the candidate.

(c) seen that the candidate did in fact have the appropriate skills and experience and

(d) that the advice given was on procedural matters and not the substantive decision to be made.

28. The decision of this Panel on this matter appears in the transcript at D1/8 and page 81 of the bundle. The Panel quite rightly adopted a cautious, even conservative approach in considering a number of issues. They considered the role of the legal assessor, as a person providing information solely in the form of legal advice to the Tribunal. They recognised that although not a member of the decision-making Panel he was a part of the judicial process in which they were engaged. They recognised that they were not bound to accept that advice, which would in any event be given openly and be susceptible to challenge. They moved on to consider the issue of real bias, which they discounted as a possibility. In considering the question of apparent bias using the fair-minded and informed observer test, again, they discounted that such an objective person would perceive bias. They observed that the experience of the legal assessor was wholly and totally unrelated to this case.
29. In any event, all the findings reached by the Panel are findings of fact in which the legal assessor would not have played any part and all appear to be obvious and reasonable conclusions on the admitted facts and the evidence before the Fitness to Practise Panel.
30. There is no basis upon which the doctrine of apparent bias applies here. Any fair-minded and informed observer would conclude that a totally unrelated experience 9 years earlier had no real or apparent bearing upon any advice given to this Panel in this hearing. As Lady Hale observed in Gillies v Secretary of State of the Fair-minded and Informed Observer. "She is informed. She knows the relevant facts and she is fair minded. She is, as Kirby J put it in Johnson v Johnson [2000] 201 CLR488 neither complacent nor unduly sensitive or suspicious."
31. In my view no such person would conclude that there was any apparent bias here. The Panel's determination was neither wrong, nor was there such procedural unfairness that I should allow this ground to succeed. Accordingly this ground of appeal must fail and be dismissed.

Ground 2

32. Ground 2 centres on complaints made about the role of Dr Keane and Dr Ahmed in the first assessment carried out and the report that that assessment generated.
33. It appears that there was some form of proceedings in an Employment Tribunal between Dr Adu, on the one hand, and Dr Keane and Ahmed on the other. As I said earlier I do not know what the issue was in those proceedings, the only information I have was that matter was settled in 2005.
34. This issue was raised by the appellant before the Panel who considered it and found no evidence of bias or, as used to be said, animus against Dr Adu by the two doctors. I have read and re-read the evidence of the two doctors. It is absolutely right that it is in substantial part critical of Dr Adu's performance. But it is not totally condemnatory and whilst it may be more stringent than the testimony of some of the other witnesses, it does not differ in content or substance. Both Drs Keane and Ahmed found areas of satisfactory performance by Dr Adu and recorded such. Their role as consultants was not the same as other witnesses in the process.
35. In any event their assessments went to form only part of the assessment carried out in 2007. I accept that that 2007 assessment was the starting point for the eventual determination but do not accept the implicit suggestion that that 2007 assessment pre-determined either the second assessment in 2012 or the determination reached by the Fitness to Practise Panel in 2013.
36. That first assessment was simply the first stage of the process of assessments of poor performance, undertakings to improve performance, failings to fulfill those undertakings and continuing poor performance as a consequence.
37. I do not find any evidence of bias on the part of either Dr Keane or Dr Ahmed but even if that were the case, there is no evidence that such bias could have or did determine the Panel's findings.
38. The inclusion of their evidence in the overall history of poor performance here was not determinative. Its inclusion was neither wrong nor procedurally unfair.
39. There was an additional complaint that the Panel did not allow for the fact that Dr Adu was under pressure at the time of that first assessment as he was apparently involved in more litigation at the same time. There is no evidence before me about that and in any event no complaint was made at the time and the criticism of his performances are not restricted to any particular period from the point at which concerns were first raised until the end of his service as a doctor. Accordingly ground 2 must also fail and be dismissed.

Ground 3

40. Complaint is made that late notice of an error in the statistical analysis of one of the stage tests, which caused an amendment by deletion of one of the facets of the performance assessment and therefore the charge, created prejudice to the appellant and that he was denied the opportunity to cross-examine one of the witnesses, Dr Garner on this point.
41. On 22 May 2013 before the Panel had reached or delivered any determination on the facts, counsel for the General Medical Council notified the Panel and Dr Adu that he had just been told by e-mail of an error in the statistical analysis relating to one of the reference groups on one of the Objective Structured Clinical Examinations OSCEs. The error did not relate to, or affect Dr Adu's score on that station. Rather, it meant that alteration would need to be made to the way in which the median and therefore the percentile chart for the reference group was established.
42. Part of the assessment process involves a series of staged tests where the person whose performance is being assessed is required to complete a piece of interaction, diagnosis or treatment of a patient. That conduct is observed directly and given a score by the observer, which is in itself an indicator of performance. It is then assessed against a reference group to provide an objective reference point rather than simply the individual marking of the person under assessment.
43. One such station is the Spacer and Inhaler station. It requires the person under assessment to explain the use of a Spacer and an Inhaler. It is in relation to this station that an error had occurred and the statistical analysis of Dr Adu's performance against the reference group might be said to be questionable.
44. It is important to note however that Dr Garner, who was the doctor who signed off on the 2012 assessment, confirmed by e-mail that the problem in the statistical analysis would not have affected the relevant section of the assessment report in any event.
45. Consideration was given to this problem by counsel for the General Medical Council and the Panel with the legal assessor and Dr Adu all playing a part. It was eventually concluded - it should be perhaps added at least in part at the instigation of the legal assessor - it was eventually concluded the safest course was to remove that station test from the charges and charge 16 was amended accordingly. Dr Adu agreed to that course, although I make it clear that if what had happened had created any procedural unfairness or was wrong, his agreement at the time, on the facts of this case, would have not have corrected such unfairness.
46. In this case however I find no procedural unfairness and the Panel's decision on this point was neither wrong nor unfair.
47. It is suggested that a fair course would have been for the Panel to recall Dr Garner who could then have been cross-examined by Dr Adu as to the reliability of all the other test results. I do not find that such a step would have achieved any advantage to Dr Adu. Dr Garner could not have dealt with the statistical problem but even if another witness from the Academic Centre for Medical Education (ACME) had been found and called it could not possibly have affected the outcome of the overall assessment.
48. These tests, assessments and interviews that go up to make these reports are incredibly detailed and thorough. To exclude one piece of referential assessment could not in any way diminish the overall conclusion based on empirical assessment supported by historical account and analysis that the appellant's performance was deficient.
49. Accordingly this ground also fails.
50. I turn briefly to deal with the question of sanction.

Erasure from the Medical Record

51. It is clear that the outcome to Dr Adu must be proportionate to the risk that his deficient professional standards created. Lord Sumption in the case of Bank Mellat v HM Treasury [2013] 3 WLR 179, sets out a test of proportionality which can properly be applied here. In that Lord Sumption discusses an assessment of proportionality and goes on the say:

"...depends on an exacting analysis of the factual case advanced in defence of the measure, in order to determine (i) whether its objective is sufficiently important to justify the limitation of a fundamental right; (ii) whether it is rationally connected to the objective; (iii) whether a less intrusive measure could have been used; and (iv) whether, having regard to these matters and to the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community."

But there is a balance to be struck between Dr Adu's practice as a doctor and the need for the public to be protected. It seems to me that there is good reason to find, even on an exacting analysis of the factual case that the objective in removing him from the register of those unable to practice is sufficiently important to justify limitation on his ability to do so. There is a clear rational connection between that and the objective, namely of ensuring in so far as it is reasonably possible that all those who practice within the medical profession do so to a high standard of competence and skill. There is no less intrusive measure in my view that could be used. The severity of the consequences which I accept entirely to Dr Adu are nonetheless the striking of a fair balance between his rights and the interests of the community as a whole. Accordingly, the appeal fails and the sanction remains.

(Submission re: costs followed)
52. MRS JUSTICE McGOWAN: Can I deal with it in this way, leaving aside the sum that I will come back to in a moment?
53. If the General Medical Council is entitled to reclaim its VAT, which I very much doubt then clearly, you should not be paying it because they should not get it from you and get it back from HMRC. So I am more than prepared to agree to some form of words that achieves that end, if it can be achieved.
54. So far as the sum is concerned, it does seem to me that the hours claimed in this case by the solicitor are refreshingly low. I would have expected them to be longer. I am not saying they should be, I am pleased they are not. But that in part must I think be attributed to experience and competence of the person carrying out the task and it does not seem to me in any way fair to lower the sum simply because a more qualified person did it more quickly than a less qualified person might have taken. Overall the figures are likely I think if not to be precisely the same, then certainly to be so close that it would not be for me to intervene. I accept Miss White's proposition on the work involved in preparing what was until very recently an appeal brought by an unrepresented litigant, highly intelligent and educated no doubt Dr Adu is but nonetheless not a lawyer and somebody who would have required a level of assistance. I am not, for these purposes, prepared to pluck a proportion out of the air to reduce the figure contained in the statement of costs and the summary assessment. Accordingly, I make the order for costs in the sum set out subject, as I say, to the resolution of the VAT point.
55. MISS WHITE: My Lady, may I take instructions?
56. MRS JUSTICE McGOWAN: Yes, of course.
57. MISS WHITE: My Lady my instructions are that the General Medical Council is a charity and therefore cannot reclaim the VAT.
58. MRS JUSTICE McGOWAN: That accords with my experience. If that turns out to be wrong, then it can be redressed in this case and no doubt thousands of others because my experience is that it is not reclaimed but there we are.
59. Are there any other matters? Thank you both very much. Mr Gun Cunningham particular thanks to you. You came into this difficult and obviously very important case for the appellant very late. I think you have managed to get up to speed and pull things together with remarkable skill in a very short period of time. The court is very grateful.