England and Wales High Court (Administrative Court) Decisions

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

		Birmingham Civil Justice Centre Priory Courts 33 Bull Street Birmingham
		08/07/15

Mr Justice Hickinbottom :

Introduction

1. This is an appeal by the Appellant Dr Muhamad Siddiqui under section 40 of the Medical Act 1983 as amended ("the 1983 Act") against the decision of a Fitness to Practise Panel of the General Medical Council ("the GMC") made on 25 February 2015 to erase his name from the medical register.

The Parties

2. The GMC is a body charged by the 1983 Act with various functions relating to medical practitioners, including keeping a register of all those who practise medicine in the United Kingdom (section 2 and Part IV) and investigating allegations that a registered doctor's fitness to practise is impaired (Part V).
3. Such investigations are conducted under the General Medical Council (Fitness to Practise) Rules Order of Council 2004 (SI 2004 No 2608) ("the Rules"). Under those Rules, where an allegation that a registered medical practitioner's fitness to practise is impaired, having given the practitioner an opportunity to respond to the allegation, case examiners must decide what action to take of those steps listed in rule 8(2) which include referring allegations for determination by a Fitness to Practise Panel. By rule 15, where there is a referral to a Panel, then a notice of hearing must be served on the practitioner, which must "particularise the allegation against the practitioner and the facts upon which it is based" (rule 15(2)(a)).
4. From 11 June 2011, the GMC established the Medical Practitioners Tribunal Service ("the MPTS") as an adjudication arm. The MPTS arranges and manages Fitness to Practice Panels more or less independently of the GMC, although it does not have a separate legal personality and the GMC funds and is ultimately responsible for the service. The GMC is therefore the appropriate respondent to this appeal.
5. The Appellant was a registered medical practitioner, employed as a Clinical Fellow in Paediatric Surgery at the University Hospital Southampton NHS Foundation Trust between June 2012 and November 2013. At the same time, he operated a private Mobile Children's Circumcision Service in which he carried out circumcisions on babies in their home for parents who wished their sons to undergo the procedure for religious or cultural reasons.

The Fitness to Practise Hearing

6. A number of separate complaints were made to the GMC, by parents and post-procedure treating hospitals, about the Appellant's conduct in relation to that circumcision service. Complaints concerning the performance of a circumcision on four baby boys (Patients A, B C and D) between June 2012 and November 2013 which formed the basis of 47 separate charges against the Appellant, that were in due course referred to a Fitness to Practise Panel. I will look at the charges in more detail in due course but, by way of broad example, it was said in respect of all or most of these patients that the Appellant performed each of these procedures without insurance and without being registered with the Care Quality Commission ("the CQC"); he failed to obtain informed consent from the child's parents; he failed adequately to take a medical history or carry out a full medical examination, including weighing the patient; he failed to provide adequate aseptic conditions in which to carry out the procedure; and, it was alleged, he failed to ensure immediate access to proper resuscitation facilities.
7. The charges were referred to a Fitness to Practise Panel, who heard the matter between 2 and 24 February 2015. The Panel comprised the usual chair and two other members, assisted by a Legal Assessor. The Appellant represented himself; the GMC was represented by Ben Fitzgerald of Counsel.
8. At the outset of the hearing, there were a number of procedural applications.
9. First, the GMC applied to amend the charges against the Appellant, in substance to:

i) Update the words alleged to have been said in a conversation between the Appellant and the father of Patient C. The original charge had been drafted on the basis of the recollection of the father, but the Appellant produced a recording of the call which enabled the charge to be more accurate and indeed to reflect the evidence which the Appellant provided. The Appellant consented to this change.

ii) The GMC proposed that, in respect of two visits to Patient D's house, the dates should read "on or about 2 November" and "on or about 3 November" in light of uncertainty as to the precise dates on which the circumcision of Patient D took place. The Appellant did not dispute that he attended Patient D's home and performed a circumcision on two occasions. The only issue was whether the dates in the charge should read "on" or "on or about".

The Panel agreed and directed those amendments be made.

10. Second, the Appellant applied to adjourn the hearing. His main ground for doing so was that he required further time to obtain legal advice, particularly in relation to the proposed amendments to the charges; but he also submitted that the GMC had not given full disclosure, and there had been recent changes in the expert evidence which he needed more time to consider. The application was refused in a written determination dated 2 February 2015, the first day of the hearing (Day 1), in which the Panel found that the hearing could continue immediately without any injustice or unfairness to the Appellant.
11. Third, the Appellant asked to attend the hearing on certain days by means of video link or telephone because he was responsible for caring for his mother. The GMC did not object; and the Panel acceded to the request. As a result, the Appellant attended some sittings by telephone.
12. As required by rule 17(2) of the Rules, the Panel approached its substantive task in three stages, namely (i) the fact-finding stage, (ii) the impairment stage and (iii) the sanction stage, making separate determinations on each on 23-24 February 2015.
13. In respect of the fact-finding stage, having considered the charges and allowed the minor amendments to which I have referred, the Panel proceeded to hear evidence from Mr and Mrs A, the parents of Patient A; Mr and Mrs B, the parents of Patient B; Dr C, the father of Patient C; and Mrs D, the mother of Patient D. Those witnesses, of course, gave evidence particularly about what had happened when the Appellant had attended their respective homes to perform a circumcision upon their respective children. The Panel also heard evidence from Sharon Hunter and Justin Hyatt of the GMC, and Sara Passmore of the CQC; and Mark Woodward, a Consultant Paediatric Urologist at Bristol Children's Hospital, who revised the circumcision on Patient D.
14. In addition, the Panel heard evidence from three experts instructed on behalf of the GMC:

i) Kalpana Patil, a paediatric surgeon who provided evidence in relation to Patient A;

ii) Naved Kamal Alizai, a paediatric surgeon who provided evidence in relation to Patients B, C and D; and

iii) Robert Walker, a consultant anaesthetist.

15. The Appellant also gave evidence over the course of a number of days.
16. Before it withdrew to deliberate, the Legal Assessor gave the Panel legal advice on a number of matters, including the burden and standard of proof, and both the test for dishonesty and the specific approach to the standard of proof in relation to allegations of dishonesty.
17. The Panel handed down its factual determination on 23 February 2015 (Day 16). I deal with the substance of that determination below (paragraph 31 and following). Suffice it here to say that a large proportion of the charges – but far from all – were found to have been proved.
18. The factual determination was emailed to the Appellant. He had been informed by email that he should attend the hearing on Day 16 at 9.30am. He was contacted by telephone on the morning of that day, when the Panel adjourned to give him time to read the factual determination and digest it, before the hearing resumed at 1.30pm as it proposed. During the telephone call, the Legal Assessor and Mr Fitzgerald discussed with the Appellant whether he would wish to submit further evidence in respect of the impairment and sanction stages, and the only information which he said he wished to provide was a further testimonial which was duly provided to the Panel. The Panel made it clear to the Appellant that it proposed to resume the hearing at 1.30pm that day, when the Appellant would be called to joint the hearing by telephone. He was told that he should be prepared to resume then.
19. However, when a number of attempts to call the Appellant were made after 1.30pm, he could not be contacted. He did not answer his phone. The Panel Secretary then emailed the Appellant, and attempted yet again to call him, but without success.
20. Given the inability to reach the Appellant in the circumstances I have described, the GMC submitted that the Appellant was absenting himself voluntarily from the proceedings and invited the Panel to proceed in his absence. Following advice from the Legal Assessor and further deliberations, the Panel determined to do so.
21. At the second stage (impairment), Mr Fitzgerald made submissions, and he invited the Panel to read the additional testimonial. The Panel deliberated, and then gave an impairment determination, finding that the Appellant's fitness to practise was impaired by the misconduct the Panel had found.
22. The Panel's decision on impairment was emailed to the Appellant and, in light of the Appellant's continued non-attendance, the Panel then adjourned and resumed the next day for submissions on sanction, in order to give the Appellant a further opportunity to attend. However, the Appellant did not attend the next day; and the hearing continued in his absence.
23. In considering sanction, the Panel took account of the GMC's Indicative Sanctions Guidance, expressly referred to the requirement that the sanction must be proportionate, and balanced the Appellant's interests against the wider public interest. It approached the question of sanction in ascending order of seriousness, concluding that (i) taking no action would be wholly inappropriate, (ii) the imposition of conditions would be insufficient (in part because the Appellant had breached interim order conditions – he had, for example, continued to perform circumcisions in circumstances proscribed by that order), and (iii) suspension would be insufficient (in part because the Appellant did not accept that he had done anything wrong, and therefore there was no sign of any willingness to address his clinical failings). The Panel was particularly concerned about the Appellant's lack of insight into his misconduct. It considered it could not be satisfied that, in the future, he would not repeat his clinical failings and/or be dishonest again. The Panel considered a number of factors which, under the Indicative Sanctions Guidance, in its view individually and collectively suggested erasure was appropriate were present in this case. The Panel concluded that the Appellant's behaviour was fundamentally incompatible with continued registration; and, in a further determination, concluded that his name should be erased from the medical register.
24. It is of course against that decision that the Appellant now appeals.

The Scope of the Appeal

25. On an appeal under section 40 of the 1983 Act such as this, the appeal will be allowed if, and only if, the Panel decision was unjust by virtue of a serious procedural or other irregularity, or if the decision of the Panel is "wrong" (CPR rule 52.11(3)).
26. The proper approach of the court in appeals such as this has been considered in a number of cases, reviewed by me recently in Heesom v The Public Services Ombudsman for Wales [2014] EWHC 1504 (Admin) at [43] and following; and in the particular context of the GMC by cases such as General Medical Council v Meadow [2006] EWCA Civ 1390 and Fatnani & Raschid v General Medical Council [2007] EWCA Civ 46, to which I have been referred.
27. From the cases, the following propositions can be derived.
28. In terms of the second limb (i.e. whether the decision below is "wrong"), the role of this court goes beyond a simple review of the decision on public law grounds – it is possible to challenge factual findings as well as the law – but neither is it a full re-hearing. Because of the important public interest in the finality in litigation, the starting point is that the decision below is correct unless and until the contrary is shown. Laws LJ put it thus in Subesh v Secretary of State for the Home Department [2004] EWCA Civ 56 at [44]:

"The burden so assumed [by the appellant] is not the burden of proof normally carried by a claimant in first instance proceedings where there are factual disputes. As appellant, if he is to succeed, he must persuade the appeal court or tribunal not merely that a different view of the facts from that taken below is reasonable and possible, but that there are objective grounds upon which the court ought to conclude that a different view is the right one. The divide between these positions is not caught by the difference between a perceived error and a disagreement. In either case the appeal court disagrees with the court below, and, indeed, may express itself in such terms. The true distinction is between the case where an appeal court might prefer a different view (perhaps on marginal grounds) and one where it concludes that the process of reasoning, and the application of the relevant law, require it to adopt a different view. The burden which an appellant assumes is to show that the case falls within this latter category." (emphasis in the original).

To that extent, in respect of factual issues, the court must engage with the merits.

29. However, in doing so, the court is required to give due deference to the Panel below, because:

i) a Fitness to Practise Panel of the GMC has been assigned, ultimately by the elected legislature through the statutory scheme of the 1983 Act, the task of determining the relevant issues;

ii) it is a specialist Panel, selected for its experience, expertise and training in the task; and

iii) it has the advantage of having heard oral evidence.

30. Of course, the extent of the deference to be given will depend upon the nature of the issue involved, and the circumstances of the case. The greater the advantage of the Panel below, the more reluctant this court should be to interfere. Therefore:

i) If the issue is essentially one of statutory interpretation, the deference due may be limited.

ii) If it is one of disputed primary fact which is dependent upon the assessment of oral testimony, the deference will be great: this appeal court will be slow to impose its own view, and will only do so if the Panel below was plainly wrong.

iii) CPR rule 52.11 expressly enables an appeal court to draw inferences it considers justified on the evidence. Where the court is asked to draw an inference, or question any secondary finding of fact, it will give significant deference to the decision of the Panel below, and will only find it to be wrong if there are objective grounds for that conclusion.

iv) Where the issue is essentially one of discretion, the court will only interfere if the Panel was plainly wrong. Case management decisions falls into this category; as does the sanction imposed. Similarly, where any open-textured evaluative judgment has to be made on the primary facts, involving a number of different factors that have to be weighed together. As Laws LJ emphasised in Subesh (at [49]), there are no rigid categories here, but a spectrum of cases, the approach being "a general one, having neither need nor scope for sophisticated refinement".

The Factual Determination

31. Many of the Appellant's complaints concern how, in its factual determination, the Panel dealt with conflicts of evidence. It is unnecessary for me to set out at comprehensive length the factual findings made by the Panel; but it might assist if I briefly set out how the Panel dealt with some of the more important factual issues. The references in this part of the judgment are to the Panel's factual determination.

i) In respect of each patient, the Panel found that the Appellant had failed to secure valid insurance or professional indemnity cover for his circumcision service, contrary to the mandatory requirement for such cover in paragraph 34 of Good Medical Practice ("GMP") (paragraphs 39-40, 63-64, 86-87 and 113-114). GMP is the core ethical guidance which the GMC provides to doctors.

ii) In respect of each patient, the Panel found that the Appellant had not registered with the CQC as a medical professional performing circumcisions, contrary to the requirement to do so in the Health and Social Care Act 2008 (paragraphs 41-42, 65-66, 88-89 and 115-116). The Panel found that an email dated 6 October 2013 from the CQC made this legal requirement unambiguously clear to the Appellant (see, e.g., paragraph 42), but he continued his service without registration.

iii) In relation to Patients A, B and C, the Panel found that the Appellant failed to obtain properly informed consent from the parents for the procedure. In making this finding, the Panel took into account expert evidence that properly informed consent requires the relevant healthcare professional to take a full medical history and carry out a physical examination to determine whether there are any factors that may (e.g.) result in complications from the procedure (paragraphs 26, 46 and 67).

iv) In relation to Patients B, C and D, the Panel found that the Appellant failed to obtain adequate histories or conduct appropriate physical examinations of the patients before carrying out the procedure. The precise details of each failure varied from patient to patient, but in each case the Panel found that the examination of the patient was inadequate (paragraphs 44-45, 71 and 90). In particular, as admitted by the Appellant, he did not weigh the patients. The Panel considered that, since anaesthesia is weight-dependent (and so the appropriate dosage of anaesthetic is calculated by reference to the weight of the child), there was a duty to weigh him.

v) In respect of each patient, the Panel found that the Appellant failed to provide adequately aseptic conditions in which to carry out the procedure. The precise details of the failure again varied from case to case, but there were common themes, such as:

a) The failure of the Appellant to wash his hands prior to commencing the circumcision procedure (paragraphs 28, 47 and 57). The Panel accepted expert evidence that the Appellant should have washed his hands, rather than simply using antiseptic gel alone (as the Appellant, based on a document from the World Health Organisation, contended was adequate and appropriate (paragraph 49)).

b) The failure of the Appellant to clean around the site of the procedure. For example, the Appellant cleaned Patient C's pubic area with a baby wipe alone before proceeding to inject him with anaesthetic despite the fact that his nappy was soiled (paragraphs 72-74).

vi) In each case, contrary to the Appellant's case that it was sufficient to rely upon the emergency 999 emergency ambulance call-out service, the Panel found that, given the Appellant administered local anaesthetic to the child by injection, he was required to have immediate access to adequate resuscitation facilities, which he did not have (paragraphs 32, 53, 79 and 95). That finding was based on the expert evidence of Dr Walker.

vii) The Panel found that the dangers of not having such facilities were highlighted by the specific case of Patient A, a 17-day old baby who suffered the serious adverse reaction to the anaesthetic. The Panel found that the Appellant failed to respond appropriately to that reaction: he did not recognise that the child was having a seizure, he did not attend promptly to the patient's airway, breathing and circulation, and he did not act immediately to ensure an ambulance was called instead asking for the central heating to be turned up and then a heater to be brought (A's father calling an ambulance on his own initiative) (paragraphs 33-38)

viii) The Panel found that the Appellant failed to respond properly to Patient C's reaction in screaming during the procedure – the Panel found that he should have stopped the procedure to check whether the anaesthetic had worked, but he simply carried on without performing any such check (paragraph 80).

ix) The Appellant performed two circumcision procedures on Patient D, on or about 2 and 3 November 2013 respectively, because the plastibell device used fell off within 24 hours of the first procedure. The Panel found that the Appellant failed to perform the procedure to an adequate standard (paragraph 96); he should have referred Patient D to hospital once the plastibell had fallen off for the first time (paragraphs 104-106); and the application of a second plastibell resulted in a loss of shaft skin which required further surgery (paragraph 107).

x) Two allegations of dishonesty were made and found proved against the Appellant. First, the Panel found that the Appellant had falsely stated to Patient C's father (who was himself a doctor) that he was an Associate Specialist when he was not, being at the lower grade of Clinical Fellow (paragraph 68). Second, the Panel found that the Appellant falsely stated to the mother of Patient D that the restrictions that had been imposed by an Interim Panel Order had nothing to do with his mobile circumcision practice, when they had (paragraph 110).

xi) The Panel also found that the Appellant failed to respond appropriately to expressions of concern about the treatment of Patient C in that the Appellant accused Patient C's parents of being dishonest and threatened to report them to the GMC (both parents being medical doctors) (paragraphs 84-85).

32. There were a number of additional allegations advanced by the GMC which were not found proved by the Panel. For example, the Panel did not find proved in relation to Patients C and D that the Appellant failed to respond to appropriately to expressions of concern about the treatment by failing to contact the respective parents on particular occasions (paragraphs 81-82, and 108); or that the Appellant treated the mother of Patient B with a lack of respect (paragraphs 59-62). The Panel also found a number of the individual allegations relating to aseptic conditions not proved.

The Grounds of Appeal

33. The Appellant now challenges the decision to erase his name from the register primarily by seeking to undermine the factual determination. With one exception (see Ground 5 below), he does not raise particular grounds in relation to the impairment and sanction determinations, i.e. he does not submit that, if the factual determination is in all material respects unimpeachable and I am satisfied that the Panel did not commit a material error of procedure, then the Panel were wrong to find his ability to practise impaired or the sanction imposed disproportionate or otherwise wrong.
34. The particular grounds upon which the Appellant relies are set out in his formal Notice of Appeal but, as Miss Neill emphasised, they are considerably expanded in the Appellant's skeleton argument served on 3 July 2015. In her skeleton argument, Miss Neill submits that the appeal was lodged out of time and should be struck out on that ground alone, and that the Appellant should not be allowed to pursue the new grounds set out in the skeleton. However, she has also responded comprehensively to each of the grounds the Appellant wishes to pursue, submitting bluntly that none has any merit. In all of the circumstances, I propose to deal with the merits first.
35. Miss Neill has helpfully identifies ten grounds – five in the original notice and a further five in the Appellant's written submission for this hearing – and, for convenience, I shall gratefully adopt the grounds numbering system she has used. The Appellant agreed that the grounds identified were comprehensive and complete, as do I.

Ground 1: The Refusal of the Appellant's Application To Adjourn

36. The Appellant submits that the Panel erred in refusing his application for an adjournment. In particular, he contends that he was unfairly denied the opportunity to obtain legal representation, and properly to address late expert evidence provided in support of the charges by the GMC.
37. A Fitness to Practise Panel is given the power to adjourn a hearing by rule 29 of the Rules. It is well-established that, in the exercise of such a case management power, there is a broad discretion: and an appeal court will interfere only if there are very clear grounds for doing so (R v Aberdare Justices ex parte Director of Public Prosecutions [1990] 155 JP 324).
38. The Appellant's core complaint is that, without legal representation, he was unable properly to address the application by the GMC to amend some paragraphs of the allegation (see Grounds, paragraph 3). However, as I have described above (paragraph 9), the application to amend was made at the start of the hearing, and amounted to very modest changes indeed. The amendments caused no possible prejudice to the Appellant; and, as Miss Neill submitted, he cannot sensible contend that his need for legal representation stemmed from such changes.
39. The Panel gave its reasons for refusing the application to adjourn in a separate determination on 2 February 2015. These noted, in particular, the following:

i) The Appellant had six months' notice of the hearing, the date of which he had known since the hearing was fixed on 7 August 2014. In the Panel's view, the Appellant had had ample time to instruct legal representation but had not done so (paragraph 6). Indeed, the Appellant himself, in his submissions, "confessed that [he] should have taken this decision [to obtain legal representation] a long time ago".

ii) The Panel were unconvinced about the reality of the Appellant seeking and obtaining legal advice. He had had only had brief discussions with potential representatives, and said that he had not instructed anyone because of financial difficulties (paragraph 5). The Appellant himself noted that he could "see that it would be an uphill task" to find the finances for legal representation, and that, in order to finance such representation, he would have to restart doing circumcision (which he was in fact prohibited to do under the interim orders against him). Indeed, before me today, he has conceded that he simply did not have the money to instruct lawyers to represent him.

iii) The Panel took into account the public interest, and the fact that an adjournment would cause considerable inconvenience to witnesses who had been warned to attend.

40. Before me, the Appellant has focused on two further matters.
41. First, he complained that further expert evidence was lodged on behalf of the GMC about ten days before the hearing. However, this appears to have been relatively modest, the Appellant did not instruct any experts himself and he does not appear to have been constrained or impeded in any way in responding to all the expert evidence that he faced. He had an adequate opportunity to respond to the evidence, and does not appear to have suffered any prejudice by its late service.
42. Second, he complains that the precise order and timings of the witnesses called by the GMC was not finalised until the first day of the hearing. However, the Appellant had known which witnesses the GMC intended to call for some considerable time, the order in which the witnesses were called was entirely conventional (the patients' parents being called first, followed by the other "professional" witnesses and then the experts) and, again, the Appellant does not appear to have been impeded in any way by virtue of the fact that the precise timetable for the hearing was not finalised until the first day. This resulted in no possible unfairness to the Appellant.
43. In its determination, the Panel fully and properly dealt with all grounds upon which the Appellant sought to adjourn the hearing. In a model determination, the Panel set out more than adequately its reasons for concluding that the Appellant would not be prejudiced by being required to proceed, and why, in all the circumstances, it was just and appropriate to refuse the adjournment. The decision of the Panel to refuse to adjourn was a legitimate and proper exercise of its discretion. The Appellant has failed to lay any possible basis for concluding that the Panel's analysis or conclusion were wrong, or resulted in any unfairness to him sufficient to render the process bad – or indeed any unfairness to him at all.
44. The first ground is consequently rejected.

Ground 2: Characterisation of the Appellant's Evidence As Confusing And Contradictory

45. The Appellant submits that the Panel's characterisation of his evidence as "confusing and contradictory", and assessment of the Appellant as lacking an appreciation of the basic principles of good medical practice and having a tendency to blame others was unwarranted (Grounds, paragraph 4). He says that he does not consider that he was "evasive" in his answers, as the Panel found him to be; and he considers that the versions of events he gave from time-to-time were generally consistent. He compares his evidence with that of the patients' parents, which (he considers) was contradictory and inconsistent. Further, in respect of the expert evidence relied upon by the GMC, he considers that inconsistent with the literature, which he put before the Panel. Thus, he submits, the characterisation of his evidence by the Panel as confusing and contradictory was unwarranted and wrong.
46. This ground lacks any merit. In exercising its functions, a Fitness to Practise Panel must consider all of the evidence its receives, and it is not only entitled but bound to come to a judgment as to which evidence is reliable and which is not, and the weight to be given to various parts of the evidence. That is one of its essential tasks. As I have emphasised, a panel has inherent advantages in assessing the credibility and reliability of witnesses and in respect of the appropriate weight to be given to evidence, in that it has the benefit of hearing and seeing the witnesses on both sides. In any event, the broad value judgments a Panel is required to make – which are (as Miss Neill submitted) in some ways akin to a jury function – are ones in respect of which there may reasonably be a spectrum of views. A panel does not err simply because it arrives at a view of a particular witness that is different from the view of one of the parties, or even the view of this court. The Panel in this case was clearly well-placed and entitled to make the findings that it did as to the general nature of the evidence given by the Appellant. In saying that, it should not be assumed that, were the task mine, on the basis of the evidence I have seen that I would differ from the conclusions the Panel in fact reached. Far from it.
47. In any event and importantly, as Miss Neill submitted, the Panel's general assessment of the evidence given by the Appellant did not lead to a wholesale rejection of everything that he said. In respect of a number of the allegations in relation to which there was a conflict of evidence between that of the Appellant and another witness, the Panel accepted the Appellant's account even when it contradicted that of a witness whom the Panel expressly found to be generally credible, at least insofar as they were not persuaded that a particular charge was proved. For example, in paragraph 78 of the factual determination the Panel did not accept the evidence of C's father – himself a doctor – that the Appellant did not wear gloves. The determination makes eminently clear that the Panel's approach to evidential conflicts was fair, balanced and unimpeachable.
48. For those reasons, Ground 2 is dismissed.

Ground 3: The Panel's Preference for the Evidence of the Patients' Parents

49. Substantially reflecting Ground 2, the Appellant challenges a number of the Panel's findings of fact on the basis that there was no proper basis for preferring the evidence of the parents of the patients to his evidence (Grounds, paragraphs 5-8). The Appellant referred, by way of example, to the evidence of the parents of Patient A who did not refer to his failing to wash his hands before the procedure; and to the telephone call between Dr C and the Appellant which the recording of the call (which the Appellant had kept) showed, was not entirely as recalled by Dr C (see paragraph 9(i) above). Before me today, the Appellant has also emphasised the fact that five of the six parents who gave evidence did so by way of video link; and consequently, he submitted, that evidence should have been given less weight.
50. This ground is similarly meritless. As I have explained, it was the Panel's function to consider and resolve the material disputes of fact between the Appellant and the other witnesses. The Panel heard the evidence of each of the relevant witnesses, and was best-placed to reach a view as to which account to prefer, taking into account all relevant matters including the manner in which the evidence was given. The fact that evidence is given by video link of course does not in itself diminish its value or weight. The Panel did not err merely because it came to conclusions with regard to the reliability of witnesses with which the Appellant disagrees. There is no evidential basis for the Appellant's assertion that the Panel was simply prejudiced against him.
51. As to the three individual factual findings which the Appellant challenges, I am grateful for Miss Neill's forensic analysis. The findings are as follows.

i) Grounds, paragraph 5: The finding that the Appellant failed to wash his hands before carrying out a procedure on Patient A (paragraph 25(4) of the factual determination).

Patient A's parents had no recollection of the Appellant washing his hands or asking to go to the bathroom. The Appellant's case was that he was shown to the bathroom by another child in the house, but Patient A's mother gave evidence in cross-examination that she was only away from the Appellant for two to four minutes and when she returned he was sitting on the settee. The evidence was clearly sufficient to enable the Panel properly to find that the Appellant did not wash his hands prior to the procedure.

ii) Grounds, paragraph 7: The finding that one of Patient A's parents called an ambulance and this was not at the Appellant's request (paragraphs 36 and 38 of the factual determination).

Patient A's parents were clear in oral examination that the Appellant did not advise them to call an ambulance. Again, there was clearly adequate evidential foundation for the Panel's finding

iii) Grounds, paragraph 8: The finding that Patient C had a soiled nappy when the Appellant injected him with anaesthetic (paragraphs 72-74 of the factual determination).

The father of Patient C was clear in oral evidence that his son's nappy was soiled; again a clearly adequate evidential basis for the Panel's finding.

52. As to the Appellant's general challenge to "each and every other allegation found proven after paragraph 25 [of the factual determination]" (see Appellant's Skeleton Argument, paragraph 6), for the reasons I have already given, the Panel were entitled to prefer the evidence of one witness over that of another.
53. This ground is consequently rejected.

Ground 4: Mrs D

54. The Appellant complains that it is unclear how and why the Panel found that Patient D's mother was generally reliable – and, in particular, reliable as to what the Appellant said to her in respect of the interim conditions under which he had been placed – given that it said that the evidence regarding email and telephone contact between Mrs D and the Appellant was confusing (Grounds, paragraph 9). On that basis, the Appellant challenges the Panel's findings in the factual determination, notably (it seems) the finding at paragraph 110 that the Appellant falsely stated to Patient D's mother that the restrictions imposed had nothing to do with his practice.
55. For the reasons already set out in relation to Ground 3, this ground too has not force. The Panel, having heard both Patient D's mother and the Appellant give oral evidence was well-placed and entitled to find that generally it preferred the evidence of one (Mrs D) over the other (the Appellant). At paragraph 110 of its determination, the Panel gave detailed reasons for rejecting the Appellant's account of what he said to Mrs D, and those reasons (and the Panel's conclusion drawn from them) were justified by the evidence before it. The Panel noted that the Appellant's evidence about what he said to Mrs D was confusing and unclear, despite several questions being asked about it and that the Appellant was unclear as to what the conditions to which he was subject meant. The response of Mrs D to the point was as follows (see transcript Day 4, page 89):

"Q ... You told us what you felt Dr Siddiqui had said to you about his - the record on the GMC website about his condition, and I think you said something like that he said to you he had done nothing wrong, it was a very unusual circumstance, he had got no problems with the GMC, but they did not like you, meaning him I suppose, to be mobile. Was there any reference in that - do you remember a reference to or words to the effect that it had nothing to do with his practice?

A Yes. He definitely claimed that it had nothing to do with his practice or the way he conducted his medical profession, it had only to do with the fact that he was able to practise his - the circumcision mobilely (sic) throughout the UK, rather than sat at a clinic, a fixed clinic, which will be regulated by the GMC."

That evidence, on its face, was clear. The Panel were entitled to prefer it to the evidence of the Appellant, which they found unclear and confusing. The fact that the evidence on email and telephone contact between the Appellant and Mrs D was not entirely clear (a matter which resulted in the Panel finding Charge 43(d) not proved) is not inconsistent with the Panel's finding that Mrs D was a credible witness and that her account in relation to Charge 44 should be accepted.

56. For those reasons, this ground is not made good.

Ground 5: The Decision To Proceed in the Appellant's Absence

57. The Appellant submits that, in all the circumstances, the Panel acted improperly by proceeding in his absence following the factual determination. He contends that the decision that erasure of the Appellant from the Register cannot be correct in that there cannot have been a proper consideration of the other possible sanctions in circumstances in which the Appellant was not present or represented (Grounds, paragraphs 10-14).
58. Rule 31 of the Rules provides:

"[W]here the practitioner is neither present nor represented at a hearing, the … Panel may nevertheless proceed to consider and determine the allegation if they are satisfied that all reasonable efforts have been made to serve the practitioner with notice of the hearing in accordance with these Rules."

59. The Panel received advice from the Legal Assessor before deciding to proceed in the absence of the Appellant, and he reminded the Panel that the discretion to conduct proceedings in the absence of the doctor should be exercised with the utmost care, that the Panel had to consider all of the circumstances (including whether the Appellant's actions amount to a waiver of his right to be present or represented), that the Panel should bear in mind whether an adjournment might result in attendance, and that the Panel was to perform a balancing exercise of the public interest against the interests of the doctor. The Panel was advised that if it did proceed, the Appellant's absence should not be held against him.
60. The Rules gave the Panel a discretion as to whether or not to proceed in the Appellant's absence – although the caution expressed by the Legal Assessor was entirely appropriate. The Panel proceeded with due caution. Its reasons for its decision to proceed in the absence of the Appellant are set out in the impairment determination at paragraphs 1-5. The Panel found that the Appellant was on proper notice of the reconvened hearing following the factual determination, and that he had voluntarily absented himself from the proceedings. Miss Neill submits that the Panel were right – or, at least, entitled – to come to that conclusion, in the following circumstances.

i) The Appellant had been given proper notice of the hearing, under the Rules, and had attended on each of the days prior to Day 16, either in person or, as permitted by the Panel upon the Appellant's application, by telephone.

ii) The Appellant was made aware by email that the hearing would be proceeding at 9.30am on Day 16. He was then contacted by phone by the Panel and spoke with the Legal Assessor and Mr Fitzgerald. He was told that the hearing would be adjourned until 1.30pm, to give him time to consider the factual determination before the hearing continued to the impairment stage. The Appellant did not ask for an adjournment, and did not indicate that he would not attend by telephone at that time.

iii) The Appellant did not answer his telephone when multiple attempts were made to call him when the hearing resumed.

iv) After the determination on impairment and before proceeding to the stage of determining sanction, the Panel emailed that decision to the Appellant and adjourned to give the Appellant a further opportunity to attend the next day.

v) Despite his failure to attend, the Appellant did contribute to the impairment and sanction stages. In the telephone call between the Appellant, the Legal Assessor and Mr Fitzgerald on the morning of Day 16, the Appellant was asked whether he wished to submit further evidence at the stage of impairment and sanction; and the only information which he said he wished to provide and rely on was a further testimonial which was copied for the Panel and provided to them.

vi) The Panel expressly balanced the Appellant's interests and the public interest in the timely conclusion of the hearing of the case (see paragraph 5 of the impairment determination).

61. In my view, these submissions are overwhelming. In all of the circumstances, the Panel was clearly entitled to conclude that the Appellant has voluntarily absented himself from the proceedings; and was clearly entitled to conclude that it was in the interests of justice to proceed without the Appellant. Indeed, before me, the Appellant accepted that, having seen the findings determination, he decided to take no further part in the proceedings and that is why he did not respond to the telephone calls on the afternoon of Day 16 or otherwise attend the rest of the hearing.
62. This ground is dismissed.

Ground 6: Experts

63. The Appellant submitted that certain experts, notably Mr Alizai, Mr M Woodward and Ms Patil did not have expertise in the fields relevant to the Panel's enquiry or all of the fields in respect of which they gave evidence, e.g. they did not have hands-on experience of performing surgical procedures in the community. Further, he submitted that a number of the experts had a conflict of interest, as he (the Appellant) had worked with them and the field of paediatric surgery is a small specialisation. In relation to a fourth expert, Dr Walker, the Appellant complains that his expert opinion was not substantiated by any supporting evidence. These contentions are set out in the Appellant's Skeleton Argument, paragraphs 9-30 and 70).
64. Again, I am grateful to the forensic analysis of Miss Neill. In respect of the expertise and potential conflict of interest, she submitted the following.
65. Mr Alizai

i) Mr Alizai is a Consultant Paediatric Surgeon at Leeds Teaching Hospitals NHS Trust. His curriculum vitae was available to the Panel. On the face of that, he is clearly qualified to give evidence on the appropriateness of the Appellant's care of Patients B, C and D, upon whom the Appellant performed a circumcision. Before the Panel, the Appellant challenged the expertise of Mr Alizai. In that cross-examination, Mr Alizai said that he had performed circumcisions, including by the method used by the Appellant (the plastibell method), although he explained that he did relatively few circumcisions on the NHS; and he said that he considered he had the appropriate experience to be an expert on a case of circumcision. This evidence was clearly sufficient to enable the Panel to conclude that Mr Alizai has appropriate expertise to give expert evidence in this case; and enabled the Panel to assess the submissions of the Appellant as to the limitations of that expertise.

ii) Mr Alizai worked in the same hospital as the Appellant in or around 2004. At the beginning of his oral evidence, Mr Alizai addressed the point which had been raised by the Appellant that there was a conflict of interest, because they had worked together and had been professional rivals with (as the Appellant put it) "enmity" between them. Mr Alizai explained that, at the time he wrote his report, he did not appreciate that the Appellant was the Mr Siddiqui he knew; but that, in any event, there was nothing which took place between the Appellant and Mr Alizai which affected his ability to provide independent evidence. The Panel accordingly was well aware of the Appellant's view that Mr Alizai had a conflict of interest and the extent of that conflict was tested in oral examination, including cross-examination by the Appellant.

66. Ms Patil

i) Ms Patil is a Consultant Paediatric Urologist at Evelina Children's Hospital. Her curriculum vitae was also before the Panel. She is clearly qualified to give evidence on the basic requirements in the performance of paediatric circumcisions, including the need to have resuscitation facilities to hand. She has some experience in plastibell circumcision in infants. The Appellant cross-examined Ms Patil on her experience in circumcision. The Appellant did not challenge Ms Patil on her experience in relation to Patient A's seizure symptoms, commenting that he had hardly come across these problems.

ii) Ms Patil worked with the Appellant in Lewisham Hospital around 2003 or 2004. She confirmed when giving evidence that, at the time of writing her preliminary report, she had no recollection of that. However, in her oral evidence, she recalled the Appellant as a trainee/junior doctor in Lewisham Hospital; and that he may have done some clinics and allocated sessions with her, but she did not remember that the Appellant working as a dedicated registrar to her as a consultant then. Ms Patil distinctly remembered that there were no problems during that time between the Appellant and herself. The Panel accordingly was well aware of the Appellant's view that Ms Patil had a conflict of interest. and the extent of that conflict was tested in cross-examination.

67. Mr Woodward

i) Although he was of course a knowledgeable lay witness and he was asked questions about his own practice, Mr Woodward did not give evidence as an expert witness, but rather as a witness of fact, having been the Consultant Paediatric Urologist who treated Patient D and revised his circumcision.

ii) Before the Panel, the Appellant was reminded that, because Mr Woodward was giving evidence as a factual and not an expert witness, it was not particularly material that they may once have worked together. In any event, when considering Mr Woodward's evidence, the Panel was plainly aware of this connection.

68. With regard to Dr Walker, he is a specialist in the field of paediatric anaesthesia. He is therefore clearly qualified by his won experience to give evidence on the need to carry resuscitation equipment when performing procedures involving local anaesthetic. It was for the Panel to assess his evidence, in the light of the literature produced by the Appellant which (he submitted) was contradictory. That is what they did. The Panel's assessment of Dr Walker's evidence cannot be sensibly questioned.
69. Therefore, in respect of each expert, the Panel had details of his or her experience and expertise, which was tested by cross-examination. It also had details of the circumstances in which they had worked with the Appellant before, again tested by way of cross-examination. Again, simply because the Appellant does not consider they have the relevant expertise and that their views may possibly have been influence by their having previously worked with him, is not conclusive. The Panel was well-placed to assess the extent to which each expert had appropriate expertise, and the extent to which previous dealings with the Appellant might possibly have compromised or influenced the evidence they gave.
70. There is no force at all in this ground.

Ground 7: GMC Wrong Advice

71. The Appellant submits that the GMC advised him that insurance was not obligatory (Appellant's Skeleton Argument, paragraph 42); and that the GMC's own witnesses accepted that most probably the Appellant was not advised by a GMC team member to seek CQC registration (Appellant's Skeleton Argument, paragraph 44). The Appellant separately challenges the Panel finding in relation to CQC registration, on the basis that the CQC advised him he was exempt from registration (Appellant's Skeleton Argument, paragraph 52).
72. It was common ground before the Panel that the Appellant did not have insurance cover for his circumcision service. Although there is no direct statutory requirement, as the Panel rightly noted (paragraph 39 of the factual determination), paragraph 34 of GMP provides that:

"You must take out adequate insurance … for any part of your practice not covered by an employer's indemnity scheme, in your patients' interests as well as your own".

The requirement for insurance in respect of a private service such as that of the Appellant's circumcision service is therefore clear.

73. The Appellant conceded before me that he did not read, and was therefore unaware of, that guidance at the time of the relevant procedures. However, he prayed in aid the fact that at none of the three Interim Panels Hearings did the panel impose a condition that he should obtain insurance for his circumcision service.
74. The evidence before the final Panel included evidence that:

i) The Appellant agreed he did not have insurance; and that he tried to get it. but it would have cost £1200 a month.

ii) A record of a call of 15 July 2011 said that the Appellant had been advised of "details of indemnity for private work". The Appellant submits that the nature of the advice was not expressly set out in that note; but the Panel was entitled to conclude that, in line with the GMP, the Appellant was advised that he did require insurance cover for his service.

iii) Sharon Hunter from the GMC confirmed in cross examination that, if someone called saying they were setting up in private practice:

"The standard advice would be that in [GMP] 2006, as it was back then, would have advice that doctors must abide by in terms of indemnity insurance. The advice would be that you would need that if you were to set up a practice, that you would need indemnity insurance, as per paragraph 34 of [GMP] in 2006…".

75. The Panel was accordingly entitled to find that the Appellant was or should have been aware of the insurance requirement, and he failed to secure valid cover.
76. With regard to CQC registration, the Panel found that the Appellant had failed to register his mobile service with the CQC – indeed, that was also uncontroversial. Such registration was a legal requirement under the Health and Social Care Act 2008. The Appellant contended that he had been advised that he was exempt from registration; but, in the face of the Appellant's submission that he reasonably thought that the reference was only to general (not local) anaesthetic, the Panel found that the email to the Appellant from CQC dated 6 October 2013, which told him that "if the circumcision is to be carried out under anaesthesia by a health care professional then registration would be required", was unambiguously clear as to the requirement for registration – and he continued with the service without registering. Those were finding open to the Panel to make on the evidence before it. Insofar as it is an objective matter for this court, I agree with the Panel's interpretation of the email.
77. Given those findings, the Appellant's suggestion that the GMC in some way erred or acted unreasonably in not referring him to the CQC in respect of registration is not to the point. Whether the GMC referred him or not was immaterial.
78. This ground too fails.

Ground 8: Bias

79. The Appellant submits that the Chair of the Panel, Mr Donnelly, was biased and had a predetermined agenda of victimising the Appellant (Appellant's Skeleton Argument, at paragraph 45). This submission is based upon interruptions by Mr Donnelly, at times (it is submitted) to relieve GMC witnesses when they were struggling to maintain their evidence. Mr Donnelly did not, therefore, act impartially.
80. There is no evidential basis at all for the suggestion that the Chair was actually biased. So far as apparent bias is concerned, the test is whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility of bias by the Chair (Porter v Magill [2001] UKHL 67).
81. I have seen the relevant transcripts. The interruptions by the Chair relied upon by the Appellant were, in my view, not arguably more than sensible case management. There is no objective basis for the suggestion that they were partial. For example, he intervened to prevent the Appellant conducting oppressive and "badgering" cross-examination of Mr Alizai: it is clear from the transcript that the Appellant was not allowing the witness to finish his responses to the questions put to him.
82. There is no sensible basis for the assertion that the Chairman of the Panel was biased against the Appellant. Simply because he took case management decisions with which the Appellant disagrees, that is no basis for such an assertion.

Ground 9: Dishonesty

83. The Appellant challenges both findings of dishonesty.
84. In relation to the first, he submits he never mentioned to Patient C's parents that he had been working as an Associate Specialist, and the Panel was wrong to prefer the evidence of the father of Patient C that he did (Appellant's Skeleton Argument, paragraph 59). In relation to the second, he submits that he had fairly told Patient D's mother about the interim order against him and again the Panel was wrong to prefer the evidence of the mother of Patient D that he did not (Appellant's Skeleton Argument, paragraph 77).
85. Miss Neill submitted that the Panel was properly directed in relation to findings of dishonesty (which the Appellant does not dispute); and, having heard extensive oral evidence, it was entitled, and indeed right, to prefer the evidence of Dr C and Mrs D to that of the Appellant.
86. In relation to Dr C, his evidence as to what he was told by the Appellant was (in the Panel's view) "very clear", and Appellant's own uncorroborated account that the Appellant said he had been offered a post as an associate specialist "unconvincing". The Panel was, clearly, entitled to prefer the evidence of Dr C over that of the Appellant, and find the relevant charges (Charges 22 and 23) proved.
87. In relation to Mrs D, the Appellant says that he told the mother of Patient D "exactly what the GMC [interim panel order] condition was" (Appellant's Skeleton Argument, paragraph 77). Of course, that condition was applied after the circumcision of Patient D. Mrs D's evidence was that the Appellant said that the condition had "nothing to do with his practice or the way he conducted his medical profession". If the Panel believed Mrs D – which it clearly did – it was therefore entitled to find proven Charge 43 that the Appellant "falsely stated … that the restrictions on [his] practice… had nothing to do with [his] practice".
88. The Panel was entitled to prefer the evidence of Dr C and Mrs D respectively. Its findings in relation to dishonesty were made on the basis of proper directions. There is nothing in this ground.

Ground 10: General Challenge to the Panel's Findings

89. The Appellant's Skeleton Argument makes a broad challenge to a significant number of the Panel's factual findings.
90. Over and above the submission that these new grounds are simply too late, Miss Neill made the following submissions in relation to the main strands of challenge sought to be made.

i) With regard to the issue of informed consent, the Appellant maintained that signing of the consent form and giving a patient information leaflet without going "into the pros and cons of doing it or not" was sufficient. However, the Panel heard expert evidence from Mr Alizai, Ms Patil, and Dr Walker that consent required a doctor to take a full medical history and to carry out a full physical examination of the patient to determine any factors that may result in complications during the procedure, prior to the consent procedure being commenced (see paragraph 26 of the factual determination). Miss Neill sets out extracts from that evidence in her skeleton argument at paragraph 116. The Panel was, clearly, entitled to accept those expert views over that of the Appellant.

ii) In his oral submissions before me, the Appellant developed a challenge, reflecting (i) above but with emphasis upon weighing the patient. He reiterated that he did perform an adequate examination of the patients; and it was not necessary actually to weigh the children, as he could obtain their weight for the purposes of ascertaining the appropriate level of anaesthetic from their records or from gauging their weight from a visual inspection. However, there was expert evidence as to the examination that was appropriate and necessary before the consent procedure was gone through and the circumcision performed, including evidence that the patient should be weighed. The Panel was entitled to take that expert evidence into account, and indeed give it substantial weight. It was entitled to prefer that evidence to that of the Appellant himself. The Panel's findings in relation to the examination generally, and specifically weighing the patient, before proceeding to the informed consent procedure were not arguably wrong.

iii) In respect of Patient A (and the finding that the Appellant did not properly attend to the patient's airway), the Appellant says that he had a stethoscope with him and, in his clinical judgement, the child did not require any further intervention such as mouth-to-mouth resuscitation However, the experts did not agree. This was a straightforward dispute on the evidence, with which the Panel was required to deal and with which it did deal. It was entitled to prefer the expert evidence, and conclude that the Appellant ought to have intervened.

iv) Mrs B said that, when she telephoned the Appellant and told him that she feared her son had a post-procedure infection, the Appellant laughed at her. The Appellant has consistently denied that Patient B had an infection; but that misses the point. The relevant charge (Charge 15) concerned the Appellant's failure to visit Patient B, not whether the boy did or did not in fact have an infection. Nothing the Appellant has said undermines the Panel's finding that he acted improperly by not seeing Patient B in these circumstances. There is no basis for overturning the Panel's findings in this regard, in paragraphs 54-55 of the factual determination.

v) Mrs B said that the Appellant did not use antiseptic gel before he examined Patient B on 22 October 2012. The Appellant said that he had done so. He produced an invoice for gel, dated shortly beforehand. In any event, Mrs B (he said) was inconsistent in her story as to where she was standing at the relevant times, and, if she was behind him, she may have missed him suing the gel which he kept in his pocket. However, the Panel preferred Mrs B's evidence and, on the basis of that evidence, it found that the Appellant had not sued gel. Those were findings which, clearly, the Panel was entitled to make on the evidence before it.

vi) In relation to Patient D, there was some dispute as to the dates of the procedure: but the Panel was entitled to accept the evidence given by the mother of Patient D, despite uncertainty in the precise date of the circumcision procedures. With regard to washing hands and the appropriateness of a referral to hospital, the Panel heard expert evidence (as to the requirement to wash hands in addition to use of an antiseptic gel) and factual evidence as to the condition of Patient D and what was required following the procedures performed by the Appellant. Having heard that evidence, and the account of the Appellant, the Panel was again entitled to reject the Appellant's case.

91. Therefore, in each of these instances – as with earlier grounds – the Appellant seeks to challenge factual findings made by the panel, on the basis that he disagrees with the weight the Panel gave to his evidence compared with the evidence of the patients' parents and other GMC witnesses. The weight given to evidence was intrinsically a matter for the Panel. It did not arguably err in the manner in which it approached its task, or in the factual findings it made none of which was "wrong".
92. I consequently do not find any part of Ground 10 made good.

Conclusion

93. For the reasons I have given, I do not find any of the grounds relied upon proved. Indeed, I do not consider any arguable. For the avoidance of doubt, although I consider I have dealt with all of the Appellant's grounds, I have considered all of the written material and his oral submissions, and I do not consider any other strand of his argument to be any stronger than the matters with which I have specifically dealt.
94. In the circumstances, it is unnecessary for me to consider further the applications made on behalf of the GMC on the basis that the appeal as a whole was out of time and the grounds first advanced in the Appellant's skeleton argument were late and permission to proceed with them should not be granted. I simply dismiss the appeal on its merits.
95. Finally, I would wish to thank both the Appellant and Miss Neill for the manner in which they conducted the appeal hearing. I have found that the Appellant's grounds were without any legal merit; but he advanced his case before me in a modest and courteous manner. For her part, Miss Neill produced an extremely helpful and commendable skeleton argument, with a comprehensive analysis of the detailed grounds advanced by the Appellant which gave the appeal structure and focus which would otherwise have been absent.