England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		25/01/2016

Mr Justice Garnham :

Introduction

1. On 20^th July 2015 the General Medical Council's Fitness to Practice ("FTP") panel reached its conclusions in the case of Dr Sathiyakeerthy Ariyanayagam. The panel concluded on the facts that, in contravention of his contract of employment, Dr Ariyanayagam was absent from Peterborough City Hospital on 91 days, in the period 2011-2013. They went on to find that his absence on those occasions was evidence of dishonesty, that his fitness to practice was impaired and that the appropriate sanction was erasure.
2. Dr Ariyanayagam now appeals to this Court against that decision. His appeal focused on the FTP panel's findings on the facts but he also challenged their conclusion on sanction.

Adjournment

3. At the beginning of the hearing before me Dr Ariyanayagam invited me to adjourn this appeal. He had been unable to secure the attendance of his counsel of choice for the day. He had made a similar application on similar grounds previously; that previous application was refused on 10^th November 2015 by Ms Janet Grey, an ACO Lawyer, on the ground that the unavailability of counsel was not a sufficient reason to adjourn.
4. I gave a short ex tempore judgment on that application on the morning of the hearing, refusing it essentially on the same grounds as Ms Gray. In consequence, Dr Ariyanayagam represented himself at the hearing. His advocacy was sensible, realistic and well-structured.

The Nature of the Appeal

5. This is an appeal under Section 40 of the Medical Act 1983. Such appeals are governed by CPR Part 52. CPR 52.11 provides as follows:

"52.11

(1) Every appeal will be limited to a review of the decision of the lower court unless –

(a) a practice direction makes different provision for a particular category or appeal; or

(b) the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing.

(2) Unless it orders otherwise, the appeal court will not receive –

(a) oral evidence; or

(b) evidence which was not before the lower court

(3) The appeal court will allow an appeal where the decision of the lower court was –

(a) wrong; or

(b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.

(4) The appeal court may draw any inference of fact which it considers justified on the evidence.

(5) At the hearing of the appeal a party may not rely on a matter not contained in his appeal notice unless the appeal court gives permission."

6. The proper approach to appeals of this sort was considered by this Court in Azzam [2008] EWHC 2711 (Admin) and the following principles identified:

"25. … The principles are:

(1) The panel is concerned with the reputation and standing of the medical profession, rather than with the punishment of doctors;

(2) The judgment of the panel deserves respect as the body best qualified to judge what the profession expects of its members in matters of practice and the measure necessary to maintain the standards and reputation of the profession;

(3) The panel's judgment should be afforded particular respect concerning standards of professional practice and treatment;

(4) The court's function is not limited to review of the panel decision but it will not interfere with a decision unless persuaded that it was wrong. The court will, therefore, exercise a secondary judgment as to the application of the principles to the facts of the case before it.

26. To this list one can also add that the Panel is entitled and bound to consider aspects of the public interest that arise in any case."

7. In Southall v GMC [2010] EWCA 407 at [47] Leveson LJ made the following observations on the approach to findings of fact by the GMC:

"As a matter of general law, it is very well established that findings of primary fact, particularly if founded upon an assessment of the credibility of witnesses, are virtually unassailable (see Benmax v Austin Motor Co Ltd [1955] AC 370); more recently, the test has been put that an appellant must establish that the fact-finder was plainly wrong (per Stuart-Smith LJ in National Justice Cia Naviera SA v Prudential Assurance Co Ltd (The Ikarian Reefer) [1995] 1 Lloyd's Rep 455 at 458). Further, the court should only reverse a finding on the facts if it 'can be shown that the findings … were sufficiently out of tune with the evidence to indicate with reasonable certainty that the evidence had been misread' (per Lord Hailsham of St Marylebone LC in Libman v General Medical Council [1972] AC 217 at 221F more recently confirmed in R(Campbell) v General Medical Council [2005] 1 WLR 3488 at [23] per Judge LJ). Finally, in Gupta v General Medical Council [2002] 1 WLR 1691, Lord Rodger put the matter in this way (at [10] page 1697D):

'In all such cases the appeal court readily acknowledges that the first instance body enjoys an advantage which the appeal court does not have, precisely because that body is in a better position to judge the credibility and reliability of the evidence given by the witnesses. In some appeals that advantage may not be significant since the witnesses' credibility and reliability are not in issue. But in many cases the advantage is very significant and the appeal court recognises that it should accordingly be slow to interfere with the decisions on matters of fact taken by the first instance body. This reluctance to interfere is not due to any lack of jurisdiction to do so. Rather, in exercising its full jurisdiction, the appeal court acknowledges that, if the first instance body has observed the witnesses and weighed their evidence its decision such maters is more likely to be correct than any decision of a court which cannot deploy those factors when assessing the position…'."

8. It follows that the Court will be slow to interfere with a panel's assessment of the oral evidence and its findings of fact. That is critical here where the challenges turns primarily on the FTP panels' assessment of oral evidence.

The Background

9. The Appellant is a consultant physician specialising in sexual health. He was employed to work full time at Peterborough City Hospital as a consultant. His employment began in January 2007 and in 2011 he became the designated clinical lead for the department of sexual health. In addition to his clinical duties, he had a range of managerial responsibilities. His contract of employment obliged him to work in accordance with a "job plan" which required him to be present at the hospital throughout the week, and in particular on Mondays and Tuesdays. His clinics tended to be held between Wednesday and Friday although they were occasionally held on a Monday or Tuesday. On those two days it was envisaged that otherwise he would undertake work such as ad hoc clinical support and other activities associated with his role as clinical lead. The complaint addressed by the FTP panel related to his absence from the hospital on Mondays and Tuesdays.
10. In 2012 staff nurse Ravi Dass raised concerns about the Appellant's repeated absence from the hospital on Mondays and Tuesdays. There was a particular occasion on 16^th April 2013 when the Appellant could not be located anywhere in the hospital. As a consequence of these incidents the Trust commissioned an external human resources consultant, Elizabeth Roe, to investigate the facts. She conducted a review of what is called "access data", that is computer records indicating when swipe cards have been used to access different parts of the hospital. She also considered documentary evidence and interviewed staff. Ms Roe concluded that the material she had seen indicated a pattern of prolonged unauthorised absences.
11. The matter was made the subject of internal Trust disciplinary process. The Appellant did not engage with that process; nor did he attend disciplinary hearings which were fixed for the 24^th April 2015. As a result, those hearings went ahead in his absence. The Trust Panel found that there had been prolonged unauthorised absence on Mondays and Tuesdays between October 2012 and April 2013. It decided that the Appellant's actions amounted to gross misconduct and he was dismissed without notice. The matter was then referred to the General Medical Council.

The General Medical Council Hearing

12. The GMC hearing commenced on the 20^th July 2015 at the Medical Practitioners Tribunal Service premises in Manchester. The hearing lasted a total of 13 days including the determination on facts, impairment and sanctions. The Panel was chaired by Dr Janet Nichols. The GMC was represented throughout by Mr Ben Fitzgerald. Dr Ariyanayagam was represented by counsel, Mr Andrew Kennedy.
13. The Panel heard evidence from eight witnesses called by the GMC. The nature of their evidence is conveniently summarised in the Determination on the facts as follows:

"Ann Stransfield: Non-clinical risk manager and local security management specialist at the Trust. Ms Stansfield gave evidence via video link relating to the floor plans of the hospital and the relevant access and exit points. In addition, she provided data regarding swipe card use. The Panel considered that her evidence provided a clear understanding of how the access data was obtained and drew attention to the operation of the relevant 'swipe' points.

Ravi Dass: Charge Nurse in DoSH from 2^nd July 2012 – 1^st July 2014. The Panel heard how Mr Dass joined the department and soon began to obtain operational details from clinic staff members in order to gain an understanding of the department and improve services. The Panel considered his evidence to be thoughtful and considered. Although there were some inconsistencies in his evidence regarding his recollection of your stated working practices, when weighted against the evidence of others, the Panel found him to be a credible witness of fact who sought to assist the Panel to the best of his abilities.

Janice Naylor: Assistant General Manager for the Family and Public Health Directorate (which included DoSH) at all material times. The Panel found her evidence supported the evidence of Mr Dass.

Marie Turney: Receptionist in DoSH. The Panel heard that from June 2011 she worked part-time, Tuesday to Friday. The Panel considered that she was a credible witness and found her evidence of assistance as she was stationed at the reception desk, a central location in DoSH.

Karina Hlinka: Administrative Supervisor and Medical Secretary until 5^th August 2013. At all material times she was your secretary. She gave evidence via video link. The Panel found her evidence somewhat guarded and vague.

Liz Roe: Human Resources and Organisational Development Consultant. She had worked for the Trust on a consultancy basis since April 2013, and was asked to undertake an investigation into the Trust's concerns regarding your attendance. The Panel found Ms Roe to be a compelling and credible witness. The Panel considered her to be competent in her field and her evidence demonstrated a good understanding of organisational matters from an HR perspective. Her evidence was presented objectively with an awareness of the anomalies such as when comparing access data and Lilie records.

Di Lynch: General Manager for the Family and Public Health Clinical Business Unit (including DoSH). The Panel found Ms Lynch to be a consistent and reliable witness. She clearly described the actions which she took on 16^th April 2013 when she queried your absence from the hospital, including the three attempts to contact you on your mobile phone. The Panel accepted her evidence.

John Randall: Medical Director. The Panel found Dr Randall to be a credible witness whose evidence was compelling. He gave an overview of the Trust's expectations of you, with particular regard to the importance of job planning, the principles of which were agreed with the BMA Local Negotiating Committee (LNC). He also confirmed that you were the Chair of this committee.

Linda Compton: Medical Personnel Manager at the Trust. Ms Compton gave evidence via telephone link. The Panel heard how Ms Compton was responsible for compiling data to support the Trust's investigation into your alleged absences. She compiled a list of dates when there was no swipe card access data, no email activity, and no activity on Lilie (DoSH's clinical management system). Ms Compton explained that she analysed all your sent email activity. She stated that if a date was not in her schedule it should be assumed that she had seen evidence of email activity. The Panel accepted her analysis."

14. The Appellant gave evidence himself but called no other witnesses. He told the Panel that he worked at the hospital five days a week. He said that when not in his clinic, he would often work in the consultants' lounge or the library. He said that the access point of the consultants' lounge was always, alternatively frequently, wedged open and that would explain why no swipe card was needed to access that room.
15. At the conclusion of the evidence the Panel heard submissions from Mr Kennedy and Mr Fitzgerald. The Panel then considered their decision, addressing successively the facts, impairment and sanction.
16. The challenge in this appeal is primarily to the Fitness to Practice Panel's decision on the facts, but also to the rationality of its conclusions. It is not suggested, however, that if the conclusions on the facts were proper, that the conclusion on impairment could be other than it was. Dr Ariyanayagam also challenges the sanction, arguing essentially that even on the Panel's findings on the facts erasure was a disproportionate sentence.
17. Given the focus of this appeal it is necessary to set out in a little detail the Panel's conclusions and reasoning on the facts.
18. The Panel found the case was not proven in respect of 18 dates when the GMC alleged the Appellant was absent from Peterborough City Hospital. However it found the case was proven in respect of the remaining 91 dates. The Panel said the following:

"13. The Panel accepted that there were some anomalies in the data, for example periods of time in which your clinics are recorded on Lilie yet there is no access data recorded for you. Therefore, the Panel approached its task by accepting that any indication of your activity should be interpreted in your favour, given the anomalies in the access data. The Panel also accepted that where there was evidence of professional activity, such as external meetings, that such evidence should be construed in your favour. Although the job plan referred to the work location as the Trust Site, the job plan also referred to other external professional commitments. The Panel therefore concluded that if there was any evidence of attendance at any professional commitment, this was not in contravention of the job plan.

14. Where there was any doubt about your professional activities, the Panel construed the evidence of Ms Compton in your favour. The Panel analysed the data provided by Ms Compton and accepted her evidence that if she did not refer to a date in her schedule then it should be assumed that she had observed email activity. The Panel referred to such evidence as 'inferred emails'.

15. The Panel found that on the following dates, there was such data, and therefore paragraph 2 was not found proved in relation to these dates…

16. In relation to the 91 remaining dates, the Panel carefully considered the evidence before it. The Panel heard how a substantial number of areas in the hospital were accessed via swipe card. The Panel accepted that there were occasions and situations where a path through part of the hospital would not have required you to use your swipe card. Swipe cards were clearly introduced for security purposes rather than to monitor staff movement throughout the Trust. However, the access data provided information that demonstrated reasonably consistent patters. On most days when it is accepted that you were present, there is a significant amount of access data. The Panel heard evidence form Dr Randall that it would be 'almost impossible' for a member of staff to spend a whole day in the hospital without using a swipe card. This contrasts with the pattern on the 91 Mondays and Tuesdays where there is a conspicuous absence of any data.

17. You told the Panel that you had a daily routine and were on site Monday to Friday. If this were the case, one would reasonably expect there to be some evidence of access data, Lilie activity, or email traffic. The Panel considered Mr Dass' evidence. He told the Panel that shortly after joining DoSH, you told him either that you did not work Mondays and Tuesday, or that you only worked Wednesday to Friday. Mr Dass then indicated that it may have been more of an inference he drew from what you told him. You deny ever telling him that you did not work Mondays and Tuesdays. Regardless of whether that specific conversation took place, Mr Dass felt there was a discrepancy between your job plan as outlined to him and what he had observed. This led him, based on his responsibilities, to query your employment with managers, as confirmed by Ms Naylor and Ms Lynch.

18. The Panel heard evidence from Ms Turney and read the statement of Ms Zimbler. They specifically commented that they did not see you on non-clinic days and did not know where you were on such days. Ms Hlinka's evidence was that she only knew where you were on clinic days, and at other times she did not know where you were but that she could contact you on your mobile phone. Your evidence was that you rarely used your office on non-clinic days, preferring to work in one of the consultation rooms when you were not using the consultants' lounge, canteen, or library. The Panel considered that had you been present as frequently as you suggested, these witnesses would be well placed to comment on your presence or movements around the department on non-clinic days, as they were stationed towards the front of DoSH. You and Ms Hlinka accessed a cabinet which was stationed in the reception area, into which she would deposit documents which you would later access to work on. If this was your regular practice on non-clinic days, it is surprising that neither Ms Hlinka or the receptionists appeared to be aware of your presence. In addition, Mr Dass was present in DoSH on a daily basis and he too had formed the impression that you were not regularly in the department on non-clinic days. In these circumstances, the Panel preferred the corroborative evidence of these witnesses to your own evidence.

19. The Panel considered your evidence that you often worked elsewhere in the building in addition to working in a consulting room in DoSH. You told the Panel that the door to the consultants' lounge on the first floor was often wedged open and therefore no swipe access was required. However, on many days when there is no dispute as to your presence on site and you used the consultants' lounge, there is swipe access data for that point. The Panel therefore rejected your assertion as inherently implausible that the consultants' lounge door was wedged open on each and every date under consideration.

20. You told the Panel that for the majority of non-clinical work which you undertook for the Trust, there was no need to access your office computer or be present in the department. The Panel was not convinced by this evidence. As the clinical lead, it would have been expected of you to interact with departmental staff. The picture that emerged from the evidence of witnesses is that you were not seen in the department on Mondays and Tuesdays.

21. The Panel also found it compelling that after 16^th April 2013 when you became aware that Ms Lynch was investigating your absence, there was a significant change in the use of your swipe card evidence in the access data.

22. The Panel considered your explanation, that you were at the hospital at all times required in your job plan, to be a straightforward one. Although you explained that you did not attend the interview with Ms Roe or the disciplinary appeal hearings as a result of legal advice, the Panel considered that, given the simplicity of your explanation, it would have been reasonable to expect you to have mentioned at the time that you worked according to your job plan.

23. In light of the evidence, and given the lack of any convincing or plausible explanation from you, the Panel concluded that it was more likely than not that you were absent from the hospital on the 91 dates remaining in the schedule, and it therefore finds paragraph 2 found proved in relation to these dates."

19. In the light of those findings of fact the Panel concluded that Dr Ariyanayagam had acted dishonestly. Paragraph 24 of the determination read as follows:

"24. As Clinical Lead and LNC Chair, you had a clear understanding of your role and responsibilities. In your evidence you agreed that there was a requirement for you to be present at the hospital Monday to Friday. Your stated position was that you were present in the Trust as required by your job plan. The Panel has rejected your evidence as being inherently implausible that you were present at the Trust on each of the relevant dates. Therefore, being absent from PCH on 91 days from 19^th April 2011 to 15^th April 2013 was dishonest."

The Competing Arguments on the Facts

20. In oral argument, the Appellant advanced essentially three grounds of appeal. He said that the evidence given by Mr Ravi Dass was unreliable and the Panel failed adequately to explain why it accepted any of it. He said that the access data presented by the Respondents was unreliable. And he argued that the reasons given by the Panel in their determination on the facts were inadequate.
21. Mr Mant for the GMC, contends that the Panel's findings of fact are unassailable. As to Mr Dass, Mr Mant says that the Appellant's criticisms are ill founded. The Panel expressly considered inconsistencies in his account but nonetheless found him a credible witness. He points out that the Panel acknowledged that there were anomalies in respect of the access data and accepted that parts of the hospital could be accessed without using a swipe card. He says that as a result they made it clear that they would not rely on the access data in isolation. Mr Mant reminded me of the authorities on the nature of the duty on GMC committees to give reasons, notably Southall v GMC [2010] EWCA Civ 407, and contended that the reasons here were entirely adequate.

Discussion and Conclusion

22. Before setting out my conclusions on the arguments advanced it may be helpful to identify what is required by way of reasons when a FTP panel of the GMC gives its determination. The relevant case-law was considered by Leveson LJ in Southall. He referred to Potter LJ's analysis in Phipps v The General Medical Council [2006] EWCA Civ 397:

"54. Sir Mark Potter P endorsed the observations of Wall LJ concerning the inter-relation of [14] of Gupta and the principles in English v Emery Reimbold and went on (at [106]):

'The latter case made clear that the so-called "duty to give reasons", is essentially a duty which rests upon judicial and quasi-judicial tribunals to state their decisions in a form which is sufficient to make clear to the losing party why it is that he has lost. This requirement will be satisfied if, having regard to the issues as stated and decided and to the nature and content of the evidence in support, the reasons for the decision are plain, whether because they are set out in terms, or because they are implicit i.e. readily to be inferred from the overall form and content of the decision. I do not think that there is any real difference or substantial inconsistency, other than one of emphasis, between that principle and what was stated in Gupta, namely that there is no general duty on the PCC of the GMC to give reasons for its decisions on matters of fact, in particular where the essential issue is one of credibility or reliability of the evidence in the case, whilst at the same time recognising that there are cases where the principle of fairness requires reasons to be given "even on matters of fact": see paragraph 14 of Gupta . It seems to me that such cases are those where, without such reasons, it will not be clear to the losing party why he has lost. It is not a necessary ingredient of the requisite clarity that the reasons should be expressly stated when they are otherwise plain or obvious'."

23. Leveson LJ went on:

"55. For my part, I have no difficulty in concluding that, in straightforward cases, setting out the facts to be proved (as is the present practice of the GMC) and finding them proved or not proved will generally be sufficient both to demonstrate to the parties why they won or lost and to explain to any appellate tribunal the facts found. In most cases, particularly those concerned with comparatively simple conflicts of factual evidence, it will be obvious whose evidence has been rejected and why. In that regard, I echo and respectfully endorse the observations of Sir Mark Potter." (emphasis added)

24. In my judgment this was such a straightforward case. The question essentially was which witnesses were to be believed on a question of fact.
25. Dr Ariyanayagam was highly critical of the way the Panel dealt with Mr Dass' evidence. He pointed out that Mr Dass had alleged that he, Dr Ariyanayagam, had told Mr Dass early on in Mr Dass' employment at the hospital, that he, Dr Ariyanayagam, only worked three days a week. In the course of cross examination by Mr Kennedy, Mr Dass accepted that he could not confidently recall whether Dr Ariyanayagam had said that he did not work two days a week or that he, Mr Dass, had simply assumed that that was the position.
26. That was plainly a potentially significant concession, undermining as it did one element of Mr Dass' evidence. The FTP Panel acknowledged the point in paragraph 17 of the determination but, in my view, Dr Ariyanayagam makes a fair point when he criticises the way the Panel expressed itself on the issue; it was a somewhat half-hearted observation. The Panel merely commented "Mr Dass had indicated that it may have been more of an inference he drew from what you told him".
27. In my view, however, the evidence as to whether or not Dr Ariyanayagam told Mr Dass that he only worked three days a week was but one piece of the jigsaw. The clear impression left by the evidence of Mr Dass was that Dr Ariyanayagam did not appear to attend the hospital on Mondays and Tuesdays of most weeks. And that was also the effect of much of the other evidence heard by the Panel.
28. GMC Panels are not obliged to analyse and reach individual conclusions on every piece of evidence they hear. As is apparent from the Court of Appeal's decision in Southall, what matters is that their determination sets out the facts found proved and explains to the losing party why their case has failed. In my judgment on the issues on which Mr Dass gave evidence, the Panel's determination did precisely that. The Panel explained that regardless of the accuracy of Mr Dass' evidence about the conversation he had with Dr Ariyanayagam, he was left with a clear impression that there was a difference between what he understood to be Dr Ariyanayagam's duties and what he had observed him doing at the hospital. The evidence from Ms Turney and Ms Zimbler was generally supportive of that case; they too did not recollect seeing Dr Ariyanayagam at the hospital on days when he did not have a clinic. The Panel went on to consider Dr Ariyanayagam's response and why it was likely, if his version of events was correct, that he would have been seen at the clinic. In my view this aspect of their reasoning was both fair and persuasive.
29. Next, Dr Ariyanayagam criticises the Panel's reliance on the access data. The access data was compiled electronically from records made whenever Dr Ariyanayagam, or any other member of staff, used a swipe card to pass through a doorway at the hospital. Dr Ariyanayagam says that there were 42 occasions demonstrated by the evidence of Ms Roe when the swipe card records suggested he had not attended the hospital but other data obtained by Ms Roe confirmed that he had.
30. Dr Ariyanayagam says that that establishes that the swipe card access data is not a reliable indicator of non-attendance at the hospital. So far as it goes, that is right. Had it been the case that the Panel reached their conclusions as to when Dr Ariyanayagam attended the hospital based solely on the access data, Dr Ariyanayagam would have a powerful argument. But the determination makes it crystal clear that the Panel did no such thing.
31. The Panel began their analysis of the access data, at paragraph 13 of the determination, by acknowledging that there were "some anomalies in the data". The use of the word "anomalies" is perhaps unhelpful in this context but it is clear from the context that what the Panel meant was that the access data did not provide the complete picture. The Panel went on to explain that there were occasions when Dr Ariyanayagam's attendance at a clinic was recorded on "Lilie", the Trust's computer system, but there was no access data recorded for him. In other words, there were days when Dr Ariyanayagam must have been working at the hospital but when the access records did not record him as passing through doors governed by the swipe card. In the light of that, the Panel made it clear that where there was any indication from other evidence of any professional activity, such as the sending of emails, they would assume that the Appellant was present at the hospital for the day. Where there was any evidence of other professional commitments, that evidence would also be construed in the Appellant's favour. It was on that basis that they found the charge not proved in respect of 18 dates.
32. As to the remaining 91 dates referred to in the charges, the Panel concluded, in the light of all the witness evidence they had heard, the lack of access data and in the light of the lack of any convincing explanation from Dr Ariyanayagam, that it was more likely than not that the Appellant was absent from the hospital.
33. They also pointed out that the access data suggested a clear pattern; on the days when it was accepted that the Appellant was present there was a significant amount of access data; on the days when it was not there was no such access data. The Panel held that if the Appellant had been on site it could be expected that there would be some evidence of access data, or email traffic or activity on the Lilie computer system (paragraph 17). On the relevant occasions, there was nothing.
34. In my judgment, that was a perfectly proper approach to adopt to the access data evidence. The Panel had made it clear that it was not content to rely simply on the access data and wherever there was other evidence that pointed in a different direction they would not rely on it. I see in that approach no unfairness or illogicality and no want of reasoning.
35. What Dr Ariyanayagam suggested was a third ground of appeal, inadequacy of reasoning, turned essentially on the same evidence as is discussed above. The reasoning criticised was that relating to Mr Dass and that relating to the access data. This argument adds nothing of substance to the points considered, and rejected, above.
36. Standing back from the particular criticisms made of the determinations by Dr Ariyanayagam, it is my judgment that this determination was entirely adequate. In fact, I would go further; in my view it was a model determination by a Panel on the facts. The Panel set out its conclusions on each of the paragraphs of the charge sheet, provided an adequate summary of the background to the allegation, summarised its view of the witnesses evidence and commented on the quality of the evidence provided by Dr Ariyanayagam. It then explained in some detail why some allegations of absence were found not proved and others were found proven. As to the latter the Panel provided detailed explanations of why it reached the conclusion it did. There can be no doubt that Dr Ariyanayagam, and this Court, knew why he had lost.
37. At the heart of this case was the Panel's conclusions on the credibility of the witnesses it heard. Essentially, it accepted the majority of the evidence given by witnesses called by the GMC and rejected Dr Ariyanayagam's account. The Panel had the benefit of seeing and hearing the witnesses give evidence. It was entitled to form a judgment on their credibility based on what it heard and saw and I see no possible grounds for interfering with that conclusion.

Impairment

38. Dr Ariyanayagam accepts that if that is so, then the finding on impairment must stand. He does, however, challenge the sanction.

Sanction

39. Dr Ariyanayagam invited me to read the transcript of the submissions on sanctions made by Mr Kennedy on Dr Ariyanayagam's behalf on 3^rd August 2015. I have done so. Mr Kennedy made some powerful points.
40. This was, however, a case of serious dishonesty over a prolonged period. As is made clear in its determination on sanction, the Panel took account of the GMC's indicative sanctions guidance and bore in mind that the purpose of the sanction is not to punish the doctor but to protect the patients and the wider public interest.
41. The Panel correctly considered each possible sanction and accepted that erasure is not necessarily inevitable simply because dishonest conduct has been substantiated. The Panel went on to note that the dishonest conduct in this case was not isolated and that there was no compelling evidence of insight. The Panel concluded as follows:

"Your dishonesty was persistent and was an abuse of your position of trust. You put your own interests before those of the service by not being present at the Hospital when required. Although you were not absent on clinic days, you were expected to be available for any ad hoc work and were entrusted with providing support for the department. In these circumstances, the Panel determined that your dishonest conduct is fundamentally incompatible with continued registration and concluded that it must direct that your name be erased from the register in order to maintain public confidence in the profession and declare and uphold proper standards of conduct and behaviour."

42. In my judgment, given the persistence and serious nature of this dishonesty that sanction was not just within the range of reasonable sanctions; it was inevitable.
43. In those circumstances this appeal is dismissed.