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
		13/03/2015

Mr Justice Collins:

1. The appellant appeals against the decision of a Fitness to Practice Panel of what is called the Medical Practitioners Tribunal Service given on 28 April 2014. A finding of misconduct was made which led to a decision that the appellant be erased from the Medical Register. The appeal is brought against the findings of the panel and against the sanction imposed.
2. The appeal is brought pursuant to Section 40 of the Medical Act 1983. An appeal under s.40 is by way of rehearing and CPR 52 applies: see Practice Direction 52D Paragraph 19(1)(l)(e) and 19(1)(2). The appellant appeared in person before the panel on the first day of the hearing which was 22 April 2014. She had been represented by solicitors via the MPS until December 2013. In circumstances which I shall have to consider in more detail, she indicated that she would not be able to cross-examine the witnesses who were to give evidence against her. She was given overnight to try to obtain representation whether immediate or following a possible adjournment. She attended on 23 April 2014. She had not been able to contact any possible representatives but unfortunately instead of informing the panel of the circumstances she said she considered it unjust and unfair for the hearing to continue and she had nothing further to say. She then left the room and the building. The panel decided to proceed in her absence. The sanction was imposed in her absence.
3. She claims that the decision to proceed in her absence was unfair. Further, she claims that the panel should not have found the facts against her and in particular should not have found her to have been dishonest, the finding being what had led to the decision that she be erased from the register. Further, she claims that even if the findings of the panel cannot be impugned, the sanction of erasure was too harsh and should not stand.
4. The dishonesty alleged against the appellant arose from statements she made and evidence she gave in a claim made against her by the partners in the practice in which her husband, Dr. Tarek Moneim, had been a general practitioner. He had become a partner in that practice in April 2003 but had been, as it was put, compulsorily retired from it in February 2007. The appellant had been a partner since January 2002 in a different practice in Reading. She did not do full time work in what I shall call her practice until August 2004. In 2003 and 2004 she did work helping out her husband at his practice. It was her case that she continued to help out, albeit less frequently, after August 2004. There were certainly two occasions in March 2005 when she did what might have been described as locum work. But it was the case against her that she had not worked at all at her husband's practice after the two occasions in March 2005.
5. Relations between the appellant's husband and Drs Underwood and Pizura, his partners, began to deteriorate. In December 2006 they lodged a complaint against him with the NHS Primary Care Trust. They were concerned, it was said, about his abilities. They complained about him and that led to certain complaints to the GMC in early 2007. The appellant had been drawn into the dispute as Dr Moneim's wife and because she had worked in his practice she knew how his partners operated. She made a complaint to the GMC about Dr Underwood which led to a finding against him in relation to his internet prescribing.
6. The relationship between Dr Moneim and his partners had broken down by the autumn of 2006. Dr Pizura had referred to Dr Moneim in disparaging terms in e-mails, reflecting adversely on his Egyptian and Muslim background. Complaints were made to the GMC by Dr Moneim against his partners and by them against him. The appellant has said she was concerned about some aspects of Dr Underwood's clinical practice and, since she was unable to deal with her concerns directly with him, she approached the PCT.
7. Dr Moneim's complaint against his partners was rejected by the GMC as not being within the scope of its Fitness to Practice procedures. Dr Moneim was found to have made numerous retrospective amendments to patients' records, some dishonestly, and on 27 April 2010 he was suspended from practice for 12 months. On appeal, the decision (save as to one finding of dishonesty) was upheld. The appellant's allegations against Dr Underwood were not established in relation to his professional performance save that he accepted a period of professional monitoring of his record keeping and was given a formal warning in relation to his practice of internet prescribing. The internet prescribing had been considered by the police and they together with the appellant referred it to the GMC.
8. The PCT in an e-mail of 5 March 2007 had sought access to the visit and message books for the two surgeries operated by the appellant's husband's practice between 2003 and 2006. Those books showed records of home visits and messages received and would contain the doctors' notes of actions taken as a result. Following their collection by the PCT on 12 March 2007, they were handed to the appellant by the PCT on 14 March 2007 to be returned to the practice. She said she received them to give to her husband to enable him to prepare his response to the allegations which had been made against him. Some eight weeks later she made her complaint about Dr Underwood to the GMC.
9. Despite requests both by Dr Moneim's partners and the PCT that the books should be returned to the practice, they were not. They were being kept, it was said securely, at the appellant's surgery. The failure to return them led to a claim in the Reading County Court for their return and damages said to have been incurred because of their absence and time spent in seeking their return. The claim as lodged was for damages amounting to £24,650. The books were returned in February 2008 but the claim for damages and costs continued.
10. It was alleged against the appellant that she had used the books to try to support her complaint against Dr Underwood in particular. This she denied saying that she had continued to do locum sessions and act as a second 'on-call' doctor from time to time to help out her husband. She also, she said, carried out administrative work, such as collection and sorting of post, and was involved in the provision of contraceptive services. All this she did after August 2004 until her husband was compulsorily retired. That she had done any such work, save for the two occasions in March 2005, for which, although her husband's name was recorded on the EMIS system used, she was paid, she received no other payment. That she had done any work as she alleged was denied by her partners and by Ms Charlton, the practice manager.
11. The circuit judge's findings are important since they were relied on to support the case against the appellant. He found Ms Charlton to have demonstrated her loyalty to Drs Underwood and Pizura and to have overstated her case in that respect. But otherwise her evidence was supported by the practice records. Dr Underwood he found to have been a poor witness. He had had to modify his evidence in a number of particulars thus having to accept that what he had put in his statement was inaccurate. Some of his evidence the judge found unacceptable. But on the key issue the judge was not prepared to accept the appellant's evidence. The judge's finding was in these terms:-

"On the balance of probabilities, I am persuaded by the evidence of Ms Charlton and, so far as it goes, Dr Pizura that, apart from the two occasions in March 2005, Dr Lawrance was not engaged to work for the claimant's practice after she became a partner to her own practice in August 2004. I cannot exclude the possibility that she occasionally deputised for her husband in making a home visit or some other task but, if that happened, any record of her work she had done was made by him in his own name."

12. The reference to her becoming a partner in August 2004 is wrong, but the error is immaterial since that was the date when she commenced to be a full time partner. It is to be noted that the judge did not rely on Dr Underwood's evidence in his conclusion nor did he rule out the possibility that the appellant had done some work such as she had stated. Nevertheless, he had clearly rejected significant parts of her evidence which either lacked any documentary support or were not credible explanations of some important matters.
13. I have dealt in some detail with the County Court decision since the appellant's statements for and evidence given in the hearing resulted in the complaint to and findings of the Fitness to Practice Panel. I shall refer to the decision as that of the FTP. The allegations as amended at the hearing that the appellant faced were as follows:-

"That being registered under the Medical Act 1983 (as amended):-

1. On 7 March 2005, whilst working as a part time General Practitioner at the Chancellor House Surgery and Tilehurst Village Surgery, Reading ('The Practice'), you recorded consultations you had undertaken at the practice in the name of your husband, Dr Moneim, a GP partner at the practice;

2. On or about 4 December 2009 you provided a statement to Reading County Court to the effect that

(a) you worked at the Practice to a greater or lesser extent until your husband was purportedly compulsory retired on 8 February 2007,

(b) in the latter part of 2006 you became very concerned about problems at the Practice as a product of working there;

3. On or about 28 January 2010 you provided a statement to Reading County Court to the effect that

a. you were providing on-call services to patients of the Practice until your husband was purportedly compulsory retired on 8 February 2007,

b. you provided administrative services to the Practice until February 2007,

c. you provided those services at the request of the Practice;

4. Between 16 May 2011 and 2 August 2011 you provided oral evidence to Reading County Court to the effect that you worked at the Practice from August 2004 until February 2007;

5. You performed no clinical or administrative work at the Practice from August 2004 after February 2007;

6. Your conduct is described at paragraph 1, 2, 3 and 4 was

a. misleading

b. dishonest

And by reason of the matters set out above your fitness to practice is impaired because of your misconduct".

14. The appellant qualified as a Doctor in 1987 and as a GP in 1994. She began to work at Chatham Street Surgery in Reading in 2001 and became a partner in January 2002. However, it was not until August 2004 that she began to work full time at Chatham Street. Her husband became a partner with Drs. Underwood and Pizura in April 2003 in a practice in Reading which ran two surgeries, Tilehurst Village and Chancellor House. Until she worked full time at Chatham Street, the appellant helped out at her husband's practice. It was her case that after August 2004 she continued to help out to a much smaller extent. She was paid for carrying out locum work on a few occasions in March 2005, albeit the work was lodged on the practice's computerised (EMIS) system under her husband's name. The case against her was, as appears from the County Court proceedings, that apart from those two occasions she had carried out no work for her husband's practice.
15. The appellant was notified by the GMC on 19 September 2012 that the complaint against her was being considered. Once the GMC indicated that the complaint was being pursued, the appellant received representation by solicitors through the MPS. On 25 September 2013 there was a case management telephone conference which provided for disclosure of witness statements and draft charges by 22 November 2013 and a provisional hearing date of 2-11 April 2014 with a time estimate of 7 days. A subsequent conference was fixed for 11 December 2013 but the appellant's solicitors notified the respondent that they were no longer representing the appellant. Thus she was neither represented nor was she communicated with so that the GMC on 11 December had no input from her. The witness statements of Dr Underwood, Dr Pizura and Ms Charlton were served on the appellant's solicitors but they did not forward them to the appellant. That would include the documentary exhibits annexed to the statements. Thus all that the appellant had received was the charges against her coupled with her knowledge of what had been dealt with and produced in the County Court proceedings. That I imagine would have included much of what was exhibited to the statements she had not received.
16. The appellant had not requested that the witnesses should attend the hearing. While she did not accept that their evidence was accurate, she seems to have believed that she could herself give evidence and show through it that the witnesses against her were not reliable. She did, she says, make attempts to obtain representation through the MDU but to no avail. Most unfortunately, she did not take any further positive steps to prepare for the hearing or to seek advice until the opening day on 22 April 2014. Nor did she produce a statement which could go before the panel.
17. At the commencement of the hearing, counsel for the GMC applied for some amendments to be made to the charges. The appellant made no objection. She was then asked whether she wished to make any admissions and she said that she did. She admitted allegations 2(a) and (b), 3(a) (b) and (c) and 4. Thus she admitted that she had made statements for the County Court and had given evidence which was accurately summarised in allegations 2, 3 and 4. It does not seem that there was in reality any dispute about allegation 1, but there was an explanation for it, access to EMIS, and there was no question that she had done the work and she was paid for it. If, however, allegation 1 was intended to go further there was a possible issue to be raised. The allegation was found proved but dishonesty was not, it being decided that what she had done was misleading, not dishonest.
18. Following the appellant's admissions, counsel for the GMC opened the case to the panel. He indicated that the allegations were set against a background of a bitter partnership dispute between Dr Moneim and the other practice members. When it came to putting the GMC's bundles before the panel, since they contained the statements of Dr Underwood, Dr Pizura and Ms Charlton, counsel informed the panel that the appellant had, following an e-mail request, confirmed that no witnesses were required to attend. But since, no doubt, it was obvious that, if the case was to be contested, their evidence could not be accepted, counsel had arranged for the two doctors to attend. Unfortunately, Ms Charlton could not since she was on jury service in a case which was due to last for some six more weeks. The appellant confirmed that she did not accept their evidence and therefore, since her belief that she could simply give evidence to deal with their accounts without challenging them was unacceptable, their presence was necessary.
19. Counsel then opened the case by reference to the statements and exhibits. During the luncheon adjournment, the appellant had spoken to the legal assessor and told him that she did not feel able to cross examine the witnesses. He said on page 222 C-D of the bundle before me:-

"She has made clear in that conversation and the subsequent conversation that that is not to be taken as any concession or at odds with her admission of certain facts, simply that she does not, I think it is fair to say, physically feel able to cross examine or ask questions of the witnesses".

The use of the adverb 'physically' is of some interest since, as will become clear, the appellant's case is that she became physically ill when realising she was to be confronted by Dr Underwood in particular since under stress she had a history of suffering from severe nausea which had sometimes required medical treatment.

20. In the light of that information from the legal assessor, counsel having made the point that it was normally necessary for witnesses to be cross examined if their evidence is not accepted, the panel asked the appellant if she understood the point being made by counsel and whether she was able to comment if she wanted further time. The following exchange then took place (page 223 D-E):-

"Dr Lawrance: Yes, I do. I did not expect the witnesses to be here until I was told they were here this morning and I did not receive the witness statements until this morning.

The Chair: I understand that.

Dr Lawrance: I thought I might be able to ask questions but I know that I cannot. I do not know, I do not think I will be able to get legal representation this afternoon or tomorrow, so that is where I am.

The Chair: I am just asking the Legal Assessor whether he thinks that, if she so wished, that Dr Lawrance ought to be able to get legal representation, say, by tomorrow morning or tomorrow lunchtime. I mean, I certainly am aware of being involved in other cases where a lawyer was got at relatively short notice to represent".

The legal assessor in response very sensibly said that even if legal representation could be obtained the next day a representative would be unlikely to be able to proceed since he or she would need time to take proper instructions.

21. The appellant then made clear that she did not accept the evidence to be given by the witnesses and that she would not be able to put her case to them or challenge their evidence herself. There then followed a short adjournment so that the legal assessor could in counsel's presence find out from the appellant how she wanted to proceed. When the hearing resumed, the legal assessor said that the appellant had been informed of the options available and that, if the witnesses' evidence was unchallenged, it would be treated as having been accepted by her. She had also been provided with the telephone number of the Bar Pro-Bono Unit. When asked by the chair to comment, she said:-

"I would be grateful if you would allow me an adjournment until tomorrow morning so I could follow up with those phone numbers and see whether I can obtain legal representation quickly".

The chair then agreed to adjourn until 10am the following day which should, it hoped, give the appellant time to find out whether she could get representation and how quickly. Perhaps, he said, there might be local people available. By the time the adjournment was granted, it was, the appellant has said, 4pm.

22. The next morning, the hearing opened with the appellant saying she just had something that she would like to say. She said:-

"I just want to say this. I believe that if the hearing is to continue, either now or later, that it will be unjust and unfair after what happened yesterday to me and I have nothing further to say".

The chair said:-

"I am not sure that I understand what you are saying. You were provided with a number of options yesterday. If your point is that the case ought never to proceed that is clearly not a reality".

The appellant's response was to say "Then I am afraid I am going to have to leave", whereupon she left the hearing and the building. The legal assessor informed the panel that he and counsel had wanted to try to get some idea of her position but she declined to speak to them and she said she just wanted to speak to the panel. Following the chair's suggestion that they might try to speak to her again, they left the room only to discover that the appellant had left the building.

23. The appellant says that she acted as she did because of nausea resulting from the stress and the presence of Dr Underwood and his wife. She says she was crying and in obvious distress in the hearing, but the transcript does not support that. The use by counsel of the word 'physically' does not help. If she was showing obvious signs of distress, someone would surely have said something even if, surprisingly, she did not. What she said on the second day was a clear indication that she was intending to take no further part in the hearing. That it would be taken that way should have been obvious. But she failed altogether to take any steps to contact the panel or to seek any assistance knowing, as she must have done, that her future as a doctor was at stake.
24. The panel had then to decide whether to continue in the appellant's absence. Counsel made the fair point that she had not said why she was withdrawing beyond a general assertion that to proceed would be unjust and unfair nor had she said whether she would seek representation or make any further application. The panel was directed to Rule 31 of the FTP Rules which enables a panel to proceed in a practitioner's absence if satisfied that all reasonable efforts had been made to effect service. While not directly applicable since the appellant had appeared but then had left, the principle lying behind the Rule applied. The panel was directed in accordance with Tait v RCVS [2003] UKPC 34 and the Court of Appeal and House of Lords in R v Jones [2001] QB 862 and [2002] 2 WLR 524. The discretion to proceed had to be exercised with great care and should only be applied in rare and exceptional cases. Considerations to be taken into account included whether an adjournment might result in the doctor attending at a later date and whether she had waived her right to attend. The extent of the disadvantage to her had to be weighed against the public interest in dealing with appeals expeditiously and the interests of witnesses. If the panel decided to proceed in the appellant's absence, reasonable steps must be taken to test the GMC's case and to make such points on the appellant's behalf as the evidence permitted.
25. Ms Davies has submitted that the directions were inadequate in that the legal assessor should have highlighted the risk of a wrong decision being reached in the absence of any proper testing of the evidence against the appellant since there was a serious possibility of erasure if the charges were established. The direction given in Tait was inadequate in that it advised the panel that it had an absolute discretion whether to proceed in the registrant's absence. This did not comply with what the court stated to be required in R v Jones. However, the legal assessor's direction was in accordance with the authorities and gave the panel all the necessary warnings.
26. The panel gave its reasons for deciding to proceed in the appellant's absence. The panel observed that its discretion to proceed should be exercised with great caution and with close regard to the overall fairness of the proceedings. The appellant faced serious allegations concerning her probity in respect of evidence she gave under oath at Reading County Court. The panel continued (p236E – 237C):-

"Given Dr Lawrance's attendance at this hearing, the Panel is satisfied that she is aware of these proceedings. Furthermore, the Panel adjourned yesterday in order for Dr Lawrance to be provided the opportunity to seek legal representation…….

Dr Lawrance has not provided the Panel with any information regarding whether she made an attempt to secure legal representation, nor has she applied for the hearing to be adjourned. Instead, she withdrew from the hearing without adequate explanation.

The allegations relate to events between 2005 and 2011. The Panel is mindful of the detrimental effect of a further delay on the memory of the witnesses. It has also borne in mind the inconvenience that would arise for the witnesses who will have to make arrangements to provide evidence to this Panel.

Given the efforts made by you and the Legal Assessor to ensure Dr Lawrance was made aware of the options available to her, the time that has already been provided and Dr Lawrance's subsequent departure without explanation, the Panel concluded that neither a short adjournment, nor a longer one to a date in the future, would be likely to result in the attendance of the doctor with or without legal representation.

In all circumstances, the Panel considers that Dr Lawrance has voluntarily waived her right to be present or represented at this hearing. It considers that it is in the public interest for this hearing to proceed and that it has exercised its discretion in determining to do so.

The Panel does not draw any adverse inference from Dr Lawrance's absence. It is an experienced Panel, conscious of its obligations to ensure that the hearing is fair to all parties."

27. Ms Davies submitted that the conclusion that the appellant had voluntarily waived her right to attend or be represented at the hearing was irrational. Reliance is placed on what is said to have been the appellant's obvious distress. But she said nothing to alert the panel to her distress and it was not obvious to them as is clear from the absence of any reference to it. I note that she said she attended a doctor and received medication as a result of her attendance on 22 April. But even now no medical evidence has been produced to support that. In all the circumstances, I have no doubt that the panel was entitled to continue in the appellant's absence.
28. This appeal has taken some time to be heard because there have been applications to adduce evidence and for the appellant to give oral evidence at the appeal. On 10 October 2014 James Goudie, QC, sitting as a Deputy Judge, refused the application but qualified that refusal in allowing the appellant to file a witness statement "directed to the matters referred to in her Solicitor's witness statement." This was queried by the respondent and there was a decision by Mr Christopher Symons, QC, sitting as a Deputy Judge, that "the order made by the learned Deputy Judge was clear". Regrettably, it was not but it must have permitted only evidence which related to what occurred when the appellant attended the hearing and why she acted as she did. It is not open to her now to seek to reargue her case before me or to adduce evidence which she could have produced or given had she not acted as she did.
29. Dr Underwood was asked a lot of questions to explain the working of the EMIS system and in particular whether the applicant could have done work which, like the two occasions in March 2005, was not recorded in her name. This point was that she had never been seen to attend the surgeries during the day and could not have got to the computer at night. That of course assumes that she did log in under her husband's name. He was asked to give his view on why she claimed to have worked in his practice when she had not. His answer covers over three pages of the transcript of the hearing. It boils down to her siding with her husband in his bitter dispute with his partners and so she was using the visits and message books, which she did not return when requested to do so, to support her husband and to obtain evidence of misconduct by his partners. It is to be noted that he said (p274F):-

"Then when it came to the judgment at the end the judge said "You did use the books and you were not in the surgery: I am sorry all of that is unreliable and particularly Dr Pizura and Jan Charlton were totally credible witnesses, you were just not there for those things".

This is hardly an accurate reflection of the judges' conclusion which I have set out in paragraph 11 above.

30. Dr Pizura was not closely involved in the management, as the judge concluded, but seems to have been positive against the appellant in his evidence to the panel. His evidence was not tested to any extent. Ms Charlton was not present and so her statement was put before the panel. In discussing whether her statement should be admitted, counsel having indicated that the appellant had not required the witnesses to attend, the chair observed (p284G):-

"I only ask because it would be clear if she did not know what the witness statements contained then she would not really be in a position to say whether she wanted them to come or not".

If that was intended to suggest that contrary to what the appellant had said, she had seen the statements, it was unfortunate. The appellant obviously knew what had been said against her at the County Court and, as I have said, she clearly was under the misapprehension that she could give evidence to deal with the issues without the need for the witnesses to be called and cross examined.

31. Reference was made to Rule 34(11) of the Fitness to Practice Rules which requires a panel to receive a signed witness statement "as the evidence in chief of the witness concerned" unless the parties have agreed, a Case manager has directed or the panel decides on the application of a party or of its own motion that the witness concerned is to give evidence-in-chief by way of oral evidence. Rule 34(11) is a reflection of the practice in, for example, the TCC. Ms Davies is correct in submitting that it is aimed at how evidence-in-chief is to be given. Such a statement is admissible but where, as here, it is clear that the evidence is not accepted by the doctor, a panel should be very circumspect in allowing it to be put before it. The chair made the point that, since one of the panel's functions was to test the GMC case, the statement should be read and a decision taken whether it needed to be tested. Since it was positive against the appellant, it is difficult to believe that it did not need to be tested. However, the panel received it in evidence.
32. It does not seem that the statements made by the witnesses for the County Court hearing were before the panel. Since both Dr Underwood and Ms Charlton had had to accept that there were some inaccuracies in their statements, those statements should have been seen by the panel and any issues which were raised by them could and should have been pursued.
33. I am bound to say that I have some concern about the nature of the complaints before the panel. In the context of evidence given before a court, the allegation here is that the appellant committed perjury. That is a very serious allegation and it is necessary if perjury is to be proved to have corroboration. Since an offence is effectively alleged, the presumption of innocence requires that there is very cogent evidence before the state of mind which would show that the appellant deliberately gave false evidence is established. Statements made for legal proceedings, particularly where they have arisen from some bitter dispute, are frequently shown to be inaccurate in cross examination but that does not necessarily show dishonesty. If it did, Dr Underwood would be in some difficulty. Thus the fact that a judge has found on the balance of probabilities that he preferred the evidence contrary to that of in this case a defendant does not mean that he is to be taken as having found dishonesty. If in a civil case a judge has made it clear that he has been lied to by a doctor, proceedings before the FTP can be justified. But where, as here, the court proceedings did not involve any suggestion of medical malpractice, to take a case before the panel based on perjury requires very strong evidence. It is common knowledge that people can act in an irrational manner even to the extent of convincing themselves that they are giving an accurate account when embroiled in bitter disputes. Neighbour and matrimonial disputes are examples.
34. When giving directions to the panel as to the approach to be applied in finding facts including whether the appellant was dishonest, the legal assessor observed (p295A):-

"The standard of proof required at this stage is what is described as the civil standard of proof, that is proof on the balance of probabilities. A fact will therefore be established by the GMC if you think more likely than not to have happened."

That is entirely correct and no elaboration was needed in relation to establishing whether the appellant's statement and evidence were accurate. In relation to dishonesty, the direction was as follows:-

"….you should consider whether the conduct was objectively misleading or dishonest. In the case of dishonesty you should also be satisfied that the conduct would have been considered dishonest by Dr Lawrance."

Ms Davies argued that the second sentence was a misdirection in that it failed to apply the correct Ghosh test which was that the appellant must have realised that her actions would have been regarded as dishonest by the standards of ordinary and decent people. However, she recognised in argument that the test stated by the legal assessor was in reality more favourable to the appellant and so that argument was abandoned.

35. The legal assessor should in my view have directed the panel that they should only find dishonesty established if they were satisfied that there was cogent evidence of dishonesty. The civil standard applies, but where dishonesty or particularly a serious offence is alleged the decision makers must be aware of the need for such cogent evidence. A direction making clear that need is in my judgment required coupled with a requirement for them to consider the full circumstances including in particular the bitter dispute and the findings of the judge which did not rule out the possibility that the appellant had done some work for her husband and which did not regard Dr Underwood in particular and to an extent Ms Charlton as model witnesses.
36. The panel found that the appellant had not worked at the practice as she had alleged. That finding was open to it on the evidence it received. That meant, it decided, that she must have known she had not worked as she alleged and therefore dishonesty was found proved. A decision on the balance of probabilities will always leave open the possibility that the contrary is correct and that is why it is dangerous unless there really is no such reasonable possibility to find dishonesty in such circumstances. This is particularly so when there has been no evidence given by the person found to have been dishonest.
37. It would have been open to the panel to have decided to proceed to hear the witnesses but only to decide the facts and to seek to notify the appellant with a view to her attending on the issue of dishonesty. That is what the panel in Tait had done. It is something which in my view should have been considered. It would have meant that the witnesses were able to give their evidence and the appellant, whose behaviour had led to the need to go ahead in her absence, could at least try to show she had not been dishonest.
38. Dishonesty by a doctor can undoubtedly amount to misconduct. Indeed, it usually will, even if it has nothing to do with professional competence. Maintenance of public confidence in the profession and the upholding of proper standards of behaviour and conduct is important. The panel considered that the fact that the dishonest conduct took place in the context of legal proceedings was of particular concern. If perjury was on its findings committed, that can be regarded as an exacerbating factor. However, there is another side to that coin, namely the descent into irrational and untypical behaviour because of the unpleasantness of the dispute.
39. I have no doubt that the panel ought to have considered before imposing any sanction, particularly as they clearly had erasure in mind, whether attempts should have been made to contact the appellant to enable her to put forward any mitigation. In giving their reasons for finding misconduct it was said:-

"In the absence of any insight on Dr Lawrance's part, and in view of the fact that she has maintained her false account of events, the Panel could not be satisfied that she would not repeat her misconduct."

Quite apart from the absence of any opportunity to hear her on this, it is difficult to see what basis there was for a conclusion that she might be dishonest in the future. The panel, in deciding on erasure, stated that it had no evidence before it of any insight or recognition of wrongdoing nor had it received any testimonial evidence as to the appellant's integrity in general. There was no reassurance that she would not repeat her misconduct. While she had left the hearing and the building, it was not to be assumed that once told that the panel had found dishonesty established and she faced the possibility of erasure she would not have sought advice and wished to attend. She has since sought such advice and has appealed. I am clearly of the view that fairness dictated that the panel should have been prepared to adjourn to give her the opportunity to attend before the appropriate sanction was imposed.

40. There can be no doubt that the fact that the appellant was disbelieved in a civil suit would not in itself undermine the trust the public place in the medical profession. The panel, having found dishonesty, took the view that this was particularly serious in being fundamentally incompatible with being a doctor. It considered four matters to be particularly relevant. These were:-

"1. Particularly serious departure from the principles set out in Good Medical Practice (i.e. behaviour fundamentally incompatible with being a doctor).

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

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

4. Persistent lack of insight into the seriousness of actions or consequences."

41. The dishonesty found had nothing to do with patient safety. It was regarded as persistent since the appellant maintained her case which was not believed in the County Court and which undoubtedly faced some major evidential difficulties. But there was no question of a cover up and it related to a situation which had put the appellant under great pressure. It is noteworthy that her husband had been suspended for what was on the face of it a very serious dishonesty in falsifying patient records. I recognise that in deciding on sanction the panel has considerable expertise and regard must be had to that. However, as CPR 52.11 makes clear and as the Court of Appeal confirmed in Meadow v GMC [2007] 1 A11 ER 1 the test I have to apply is whether the decision was wrong. Observations of Laws J in Raschid v GMC [2007] 1 WLR 1460 require the court to avoid an exercise in resentencing. Essentially, the court should not interfere unless it is shown that the panel has misdirected itself in some way in the reasons given for the sanction imposed. I have no doubt that if it were left to me, I would regard erasure as excessive. This is particularly so having regard to the sanction imposed on the appellant's husband.
42. Since I have decided that the panel erred in its approach to a finding of dishonesty and in failing both before finding dishonesty and particularly before deciding on sanction to contact the appellant to invite her to attend to make representations, I will allow this appeal and send the case back to the panel. The appellant's foolishness in dealing with the hearing has led to a finding that her statements and evidence were inaccurate. That the appellant cannot now challenge. But she can seek to show that at worst that conduct was misleading, not dishonest, and that erasure was too severe. I recognise that there may be a degree of artificiality if the appellant maintains her case on the facts but that results from her foolishness. And her foolishness should not mean that she suffers the ultimate sanction if when her case is heard it is accepted that that is not justified.