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
		30/11/2017

Mr Justice Lavender:

(1) Introduction

1. The General Medical Council ("the GMC") brings this appeal pursuant to section 40A of the Medical Act 1983 ("the Act") against the decision of a Medical Practitioners Tribunal ("the Tribunal") to restore to the register of medical practitioners the name of Dr Ahmed Mohamed Mahdy Khaleel Nooh.
2. The GMC advances five grounds of appeal, as follows:

(1) Ground 1: The Tribunal went behind the facts as found and substituted its own assessment of the seriousness of misconduct.

(2) Ground 2: The Tribunal failed to give adequate weight to Dr Nooh's lack of insight.

(3) Ground 3: The Tribunal failed to give any or any adequate consideration to the over-arching objective.

(4) Ground 4: The Tribunal failed to have any or any adequate regard to the seriousness of the dishonesty when applying the over-arching objective.

(5) Ground 5: The Tribunal failed to give adequate reasons for its decision.

3. It is necessary to consider the background to, and the reasons for, the Tribunal's decision before returning to these grounds of appeal.

(2) The Panel's Decision

4. Dr Nooh's name was erased from the register in 2009 after a hearing before a Fitness to Practise Panel ("the Panel") which took place between 13 and 20 July 2009. It is relevant to note that Dr Nooh did not attend, and was not represented at, the hearing before the Panel. Dr Nooh had instructed solicitors. They had made written submissions, which the Panel considered. By the time of the hearing, Dr Nooh had his own health issues. However, the Panel were not given evidence in advance of the hearing to the effect that Dr Nooh was unfit to attend. Dr Nooh considered whether his solicitors should represent him in his absence. He decided that they should not.
5. The Panel found proved the following allegations ("the Patient A allegations") concerning Dr Nooh's actions in relation to the treatment of a patient who was referred to as "Patient A":

"1. In August 2006 you were employed as a Locum Consultant in Obstetrics and Gynaecology by Bro Morgannwg NHS Trust at the Princess of Wales Hospital, Bridgend ("the hospital")

2. On 9 August 2006 Patient A underwent an emergency Caesarean Section at the hospital, performed by Dr Fran Rushworth, Locum Consultant in Obstetrics and Gynaecology

3. On attending theatre at Dr Rushworth's request, she informed you that

a. on opening Patient A's abdominal peritoneum, she had found a considerable volume of dark brown blood within the peritoneal cavity,

b. she had found the blood in the abdominal cavity prior to making an incision in the uterus,

c. the source of the bleeding was extra-uterine,

d. a litre of blood had been drained from Patient A,

e. the blood appeared to be draining from the right upper quadrant,

f. she suspected the bleeding was coming from Patient A's liver,

g. she intended to carry out a laparotomy on Patient A to try and identify the source of the bleeding;

4. You

a. did not pay sufficient attention to Dr Rushworth's description of Patient A's bleeding,

b. cancelled the attendance of the consultant surgeon, who had been called to attend the laparotomy,

…

e. were dismissive of [Dr Rushworth's] concerns;

5. Patient A was subsequently transferred to the intensive care unit where you were the on-call consultant with responsibility for her care through the night of 9/10 August 2006

6. The obstetric registrar, Dr Obi Mba, discussed the condition of Patient A with you on at least two occasions during the night of 9/10 August 2006. You were advised that

a. Patient A's haemoglobin was falling despite transfusion,

b. Patient A's abdominal girth was increasing,

c. there was persisting and significant loss of blood through the abdominal drains;

7. You did not

a. attend in person on Patient A,

b. actively seek information on Patient A's progress,

c. make any entry in Patient A's medical records while she was in intensive care,

d. liaise with general surgical colleagues considering Patient A's deteriorating condition;

8. Your actions at paragraphs 4 (a), (b), … and (e) and 7 (a), (b), (c) and (d) were

a. not in the best interests of Patient A,

b. below the standard to be expected of a reasonably competent Locum Consultant in Obstetrics and Gynaecology;"

6. It will be noted that the Panel's findings on the Patient A allegations did not include findings that:

(1) Dr Nooh made an incorrect diagnosis of Patient A's condition; or

(2) Dr Nooh's conduct resulted in an adverse outcome for Patient A's treatment.

7. The Panel also found proved the following allegations ("the dishonesty allegations") involving dishonesty by Dr Nooh:

"9. On 24 November 2007 you submitted an application form to Carmathenshire NHS Trust for the post of Locum Trust Registrar in Obstetrics and Gynaecology

a. in response to the question on the application form,

"Are you currently the subject of a fitness to practise investigation or proceedings by a licensing or regulatory body in the UK or any other country"

You answered "No."

b. you knew or ought to have known that you were subject to investigation by the General Medical Council ("the GMC") at the time of making this application;

10. On 1 December 2007 you submitted an application form to Carmarthenshire NHS Trust for the post of Locum Staff Grade in Obstetrics and Gynaecology

a. in response to the question on the application form,

"Are you currently the subject of a fitness to practise investigation or proceedings by a licensing or regulatory body in the UK or any other country"

You answered "No."

b. you knew or ought to have known that you were subject to investigation by the General Medical Council ("the GMC") at the time of making this application;

11. On or around 23 December 2007 you submitted an application form to Mid Yorkshire NHS Trust for the post of Locum Consultant in Obstetrics and Gynaecology

a. in response to the question on the application form,

"Are you currently the subject of a fitness to practise investigation or proceedings by a licensing or regulatory body in the UK or any other country"

You answered "No."

b. you knew or ought to have known that you were subject to investigation by the General Medical Council ("the GMC") at the time of making this application;

12. Your actions at paragraphs 9, 10 and 11 above were

a. misleading,

b. dishonest."

8. The Panel found that Dr Nooh's fitness to practise was impaired by reason of his misconduct. It then went on to consider the appropriate sanction. In deciding what sanction to impose, the Panel had regard to the "Indicative Sanctions Guidance for the Fitness to Practice Panel" published in April 2009. Paragraph 82 of that guidance stated as follows:

"Erasure may well be appropriate when the behaviour involves any of the following factors (this list is not exhaustive):

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

…

Abuse of position/trust (see Good Medical Practice paragraph 57 "you must make sure that your conduct at all times justifies your patients' trust in you and the public's trust in the profession")."

…

Dishonesty, especially where persistent and/or covered up (see further guidance at paragraphs 105-111 below.

Abuse of position/trust (see Good Medical Practice paragraph 57 "you must make sure that your conduct at all times justifies your patients' trust in you and the public's trust in the profession").

…"

9. In its decision on sanction, the Panel stated, inter alia, as follows:

"The Panel has found that Dr Nooh's conduct, in relation to his clinical care of Patient A on 9/10 August 2006 and his conduct in relation to completing three separate application forms for employment between 24 November 2007 and 23 December 2007, demonstrated serious and repeated breaches of the principles set out in Good Medical Practice (2001 and 2006 editions, applicable at the time).

Furthermore, the Panel has received documentary evidence which demonstrated that Dr Nooh omitted the details of two of his most recent employers from the application forms he completed. It is of the view that this was both inaccurate and misleading for any prospective employers and compounded his dishonesty. The Panel considered that by his actions Dr Nooh put his own interests before those of patients.

The Panel considered that his actions constituted a serious abuse of the public's and patients' trust in the medical profession and as a consequence of them patients could have been placed at unnecessary risk of harm."

"Furthermore, the Panel has seen no evidence to suggest that Dr Nooh has recognised the seriousness of, or made any attempt to remedy, his failings.

In the light of all the evidence presented to it, the Panel has concluded that Dr Nooh's behaviour is fundamentally incompatible with him continuing to be a registered medical practitioner.

In all the circumstances of this case, the Panel has concluded that a period of suspension would not be sufficient, proportionate nor in the public interest."

10. In these passages, the Panel was explaining why it considered that Dr Nooh's misconduct fell within various of the categories set out in paragraph 82 of the Indicative Sanctions Guidance as examples of cases which merited erasure. The Panel concluded that erasure of Dr Nooh's name from the register was the appropriate sanction. It will be noted that in its decision on sanction the Panel considered the cumulative effect of the Patient A allegations and the dishonesty allegations. Ms Hearnden, for the GMC, conceded that, if the Patient A allegations had stood alone, then the Panel might not have considered that erasure was required.
11. The effect of the Panel's decision was that Dr Nooh was not allowed to apply for the restoration of his name to the register for 5 years. The next most serious sanction would have been to suspend Dr Nooh's registration, but the Panel only had power to suspend Dr Nooh's registration for 12 months.

(3) Challenges to the Panel's Decision

12. Dr Nooh appealed against the Panel's decision. His appeal was heard by Supperstone J. One of the grounds of appeal was Dr Nooh's claim that the Panel should have adjourned the hearing. Supperstone J rejected that ground of appeal in a judgment which is not reported. Supperstone J rejected Dr Nooh's other grounds of appeal in a judgment which is cited as [2011] EWHC 359 Admin. Dr Nooh applied to the Court of Appeal for permission to appeal. This was refused by Gross LJ on 17 October 2011. Dr Nooh also brought a claim before the European Court of Human Rights. This was dismissed.

(4) The Role of the Tribunal

13. In 2016 Dr Nooh made an application for the restoration of his name to the register. On such an application, subsection 41(1) of the Act provides that a Medical Practitioners Tribunal may, if it thinks fit, direct that the applicant's name be restored to the register. This confers a broad discretion on a Medical Practitioners Tribunal: see GMC v Chandra [2017] EWHC 2556 (Admin), at para. 27(i).
14. Subsection 41(12) provides that, in exercising a function under section 41, a Medical Practitioners Tribunal must have regard to the over-arching objective. As provided in subsections 1(1A) and (1B), the over-arching objective of the GMC in exercising its functions is the protection of the public and the pursuit of the over-arching objective involves the pursuit of the following objectives:

"(a) to protect the health, safety and well-being of the public;

(b) to maintain public confidence in the medical profession; and

(c) to maintain proper professional standards and conduct for members of that profession."

15. The GMC has published "Guidance for doctors on restoration following erasure by a medical practitioners tribunal". Paragraph 10 of this guidance states as follows:

"The tribunal will consider a number of factors, including the following:

a The circumstances that led to erasure.

b The reasons given by the previous tribunal (or committee) for the decision to direct erasure.

c Whether you have any insight into the matters that led to erasure.

d What you have done since your name was erased from the register.

e The steps you have taken to keep your medical knowledge and skills up to date and the steps you have taken to rehabilitate yourself professionally and socially."

(5) The Hearing Before the Tribunal

16. The hearing before the Tribunal took place on 11, 12 and 13 January 2017. Dr Nooh attended that hearing, made submissions, gave evidence and produced a number of documents. These included, for example, a statement by Dr Hassan, who was the consultant surgeon called to attend Patient A on 10 August 2006, after the hand-over by Dr Nooh. He expressed the opinion that Dr Nooh's management of Patient A was correct.
17. In his evidence, including in response to questioning from counsel for the GMC, Dr Nooh addressed the allegations and his insight into them. In relation to the Patient A allegations:

(1) Dr Nooh denied that he did not pay sufficient attention to Dr Rushworth's description of Patient A's bleeding (i.e. allegation 4(a)).

(2) Dr Nooh denied that he cancelled the attendance of the consultant surgeon who had been called to attend the laparotomy (i.e. allegation 4(b)).

(3) Dr Nooh denied that he was hostile and dismissive to Dr Rushworth (i.e. allegation 4(e)). However, he accepted that his voice was loud and that, while he was a team player and had good communication, he needed "to do a bit of exercise, more exercise to be seen by the others that, yes, I am a team player and having good communications."

(4) Dr Nooh said that he should have attended Patient A (i.e. allegation 7(a)) when his registrar called him for the second time and in the morning of 10 August 2006 at the end of his on-call duty and that this was a lesson which he had learned for the future.

(5) Dr Nooh did not accept that he did not actively seek information on Patient A's progress (i.e. allegation 7(b)).

(6) Dr Nooh accepted that he did not make any entry in Patient A's medical records while she was in intensive care (i.e. allegation 7(c)). He said that this was regrettable and a lesson which he had learnt for the future.

(7) Dr Nooh accepted that he did not liaise with general surgical colleagues in light of Patient A's deteriorating condition (i.e. allegation 7(d)), but said that he did not need to. He thereby denied that he had done anything wrong.

18. Thus, of the seven Patient A allegations of misconduct on his part, Dr Nooh's evidence was that he had learnt something in relation to three of them, but he denied the other four.
19. In relation to the dishonesty allegations, Dr Nooh accepted that his answers in the three application forms had been misleading, but denied that they had been dishonest. He admitted that he had made a mistake and apologised for that mistake.
20. Dr Nooh also gave evidence about the health issues which he had faced at the time of the Panel hearing. Moreover, Dr Nooh said that he believed that the whole process of investigation leading to the decision to erase his name was "faulty, flawed, inappropriate, unfair and unjust." His questioning included the following exchange, about the entire process before the Panel and on appeal therefrom:

"Q So from beginning to end of this process you have been critical in a variety of ways, some of which I have highlighted. Yes?

A This building is composed of probably four or five storeys: if your base is weak the whole building will collapse.

Q Let me ask that question again. Maybe you did not understand. You are critical, or you were critical in the way that I have attempted to highlight in a variety of ways, of the process from beginning to end?

A What is built on false pretence is wrong.

Q I will take that as a yes, and you continue to be critical of that process?

A Yes."

(6) The Tribunal's Decision

21. This appeal requires a careful consideration of the Tribunal's decision as a whole. Mr Kennedy rightly submitted that one has to look at the passages relied on by the GMC in their proper context.

(6)(a) The Tribunal's Decision: Approach

22. The Tribunal dealt first with the background, the evidence and the parties' rival submissions. There followed a section of its decision entitled "The Tribunal's Approach". The Tribunal correctly directed itself as follows in paragraphs 29 to 31 to of its decision:

"29. The Tribunal bore in mind the advice given by the Legal Assessor. He reminded the Tribunal that an applicant is not to be restored to the Register unless, in the Tribunal's judgement, the doctor is fit to return to unrestricted medical practice. He referred the Tribunal to Guidance for doctors on restoration following erasure by a medical practitioners tribunal.

30. The Tribunal recognised it must not go behind the findings of the original Panel concerning the facts found proved and the finding of misconduct and dishonesty. However, it is for this Tribunal to decide whether your fitness to practise remains impaired.

31. In reaching its decision in respect of your application, the Tribunal gave careful consideration to all the circumstances of your case. These included: your application for restoration dated 31 March 2016; the circumstances which led to your erasure; the determination of the previous Panel; your levels of insight into the criticisms of your conduct that led to your erasure; any remedial action you have undertaken since your erasure including steps you have taken to keep your knowledge and skills up to date; the evidence you gave, and the representations you made to the Tribunal."

23. Paragraph 32 of the Tribunal's decision was the subject of some debate in the hearing before me. In that paragraph, the Tribunal said as follows:

"32. The Tribunal has noted that you fully aired your grievances concerning the original Panel's decision to proceed in your absence in the course of your appeal to the High court, and that the Panel's decision to proceed in your absence was upheld. Having considered all the evidence, the Tribunal has concluded that, had the details of your health condition as contained in your doctor's letter dated 11 August 2009 been submitted to the GMC in advance of the hearing on 13 July 2009, it is very likely that the hearing would have been adjourned until such time as you were fit to attend. That this did not happen was in no way the fault of the GMC or the Panel. However, this Tribunal has been able to receive and consider evidence adduced by you which was not available to the original Panel."

24. The GMC drew particular attention to the sentence which I have underlined. I will return to that.
25. No issue was taken with the Tribunal's directions to itself in paragraphs 33 to 35, which were as follows:

"33. Throughout its deliberations, the Tribunal took account of the statutory overarching objective of protecting the public, which includes protecting the health, safety and wellbeing of the public, maintaining public confidence in the profession, and promoting and maintaining proper professional standards and conduct for the members of the profession. The Tribunal also bore in mind its duty to apply the principle of proportionality, weighing the interests of the public with your own interests.

34. The Tribunal bore in mind that, should it determine to restore your name to the Medical Register, there is no provision for this to be on the basis of anything other than unrestricted registration. The onus of persuading the Tribunal that you are fit to practise and should be returned to the Medical Register is on you.

35. The Tribunal considered all the evidence provided by you to demonstrate the steps you have taken to remedy your wrongdoings and to keep your medical knowledge and skills up-to-date."

26. The next section was headed "The Tribunal's decision". This section began with paragraph 36, which stated that the Tribunal had considered the factors listed in paragraph 10 of the "Guidance for doctors on restoration following erasure by a medical practitioners tribunal". Paragraph 37 then stated as follows:

"37. The Tribunal considered the reasons given for your erasure. The Panel cited serious and repeated breaches of the principles set out in Good Medical Practice, and the fact that you had put your own interests before those of patients. It also stated that your actions constituted a serious abuse of the public's and patients' trust in the medical profession and as a consequence patients could have been placed at an unnecessary risk of harm. The Panel found no evidence that you had recognised the seriousness of your actions, or made any attempt to remedy them."

27. This was a reference to the passages from the Panel's decision on sanction which I have already quoted.

(6)(b) The Tribunal's Decision: Patient A

28. In relation to the Patient A allegations, the Tribunal said as follows in paragraphs 38 and 39 of its decision:

"38. In your oral evidence in relation to Patient A, you explained to the Tribunal how you had made your diagnosis of disseminated intra-vascular coagulation (DIC) which Dr Rushworth and the GMC expert witness accepted had been reasonable. Because of the diagnosis, you had thought a laparotomy was not appropriate and indeed that it could put Patient A at serious risk of harm. Therefore you sent the patient to the ICU to be treated conservatively. In your evidence, you stood by the clinical decisions that you made at the time. You accepted that your manner towards Dr Rushworth may, in the heat of the moment, have come across to her as dismissive and that at this time your teamworking and communication skills were lacking.

39. Although the Tribunal was of the view that you might have explained your actions more fully to your colleagues that night, it did not consider that your conduct at the time was as troubling as the Panel had concluded. In reaching this conclusion, the Tribunal has had the benefit of additional evidence which you have provided at this hearing."

29. I will have to consider the passage which I have underlined in the context of ground 1 of the grounds of appeal.
30. As for Dr Nooh's insight in relation to the Patient A allegations, the Tribunal said as follows in paragraphs 40 to 43 of its decision:

"40. You have accepted that you should have made clinical notes when visiting Patient, A in the ICU, and that when the Registrar called you twice during the night after Patient A had been transferred to ICU, you should have attended on the second call. The Tribunal is satisfied that the taking of these further steps by you would not have changed the course of Patient A's management but that these steps would have reassured your colleagues.

41. In the view of the Tribunal, your recognition of these failings does constitute a degree of insight into your actions.

42. The Tribunal has concluded that since you maintain to this day that your diagnosis of DIC was a reasonable one in all the circumstances and that the decision not to perform a laparotomy that night was sound you should not be punished further for any lack of insight on this matter.

43. In arriving at this conclusion, the Tribunal noted that following the handover the following morning Mr Dharmasiri took the patient back into theatre (thereby departing from your management plan) and opened her up only to find no evidence of bleeding. Mr Dharmasiri then summoned the general surgeons to perform a laparotomy and again they found no evidence of bleeding. The CT scan of the patient's abdomen was carried out after these procedures. It showed nothing that called for further surgical intervention and the patient continued to be managed conservatively."

31. Finally, in relation to Patient A, the Tribunal said as follows in paragraph 44 of its decision:

"44. The Tribunal concluded that the clinical shortcomings identified by the Panel were in relation to one patient over a relatively short period of time. There was no evidence to suggest that this was reflective of your wider practice. The issues primarily related to poor communication and teamwork in this one instance. Whilst this Tribunal did not seek to go behind the 2009 Panel's findings, it took a different view about the degree of seriousness of your actions which led to erasure, in light of the new evidence that has been presented at this hearing. The Tribunal accepted that while there were significant failings in your dealings with medical colleagues, it could not criticise your clinical judgement in relation to Patient A".

32. The sentence which I have underlined echoes what the Tribunal said in paragraph 39 of its decision and is also relied on by the GMC in support of ground 1 of the grounds of appeal.

(6)(c) The Tribunal's Decision: Dishonesty

33. In relation to the dishonesty allegations, the Tribunal said as follows in paragraphs 45 and 46 of its decision:

"45. In your evidence you accepted that you completed the application forms for locum employment incorrectly, but you did not accept dishonesty. You emphasised to the Tribunal that in relation to the Carmarthenshire Trust application form which you filled out incorrectly, when this was drawn to your attention you attended a meeting with the Trust and apologised. Your evidence was that, until it was drawn to your attention, you had not realised your error.

46. The Tribunal took the view that the facts that led to your finding of dishonesty were within a narrow compass and that the dishonesty was limited in nature – there is no evidence that it extended beyond the form-filling identified by the Panel."

34. As for Dr Nooh's insight in relation to the application forms, the Panel said as follows in paragraph 47 of its decision:

"47. The Tribunal has assessed the question of whether you have now demonstrated sufficient insight into this matter. The Tribunal concluded that, in the light of your continuing denials of dishonesty, the only insight that is available in these circumstances is a clear and unequivocal assurance that – whatever the circumstances surrounding the original finding – there has been and will be no repetition of misconduct and that you have learnt from the experience. The Tribunal is satisfied on the evidence that it is extremely unlikely there will be a repetition of the conduct which led to the earlier finding."

(6)(d) The Tribunal's Decision: Activities since Erasure

35. The Tribunal dealt in paragraphs 48 and 49 of its decision with Dr Nooh's work in Egypt and elsewhere since 2009. It said as follows:

"48. The Tribunal accepts your evidence of what you have done since your erasure. You have been practising in Egypt since your erasure and also worked for approximately three months in Dubai. You have produced certificates of good standing issued by the regulatory bodies of these countries. You have produced numerous testimonial and "thank you" cards and letters from patients. You also presented testimonials from colleagues and fellow professionals. You explained how you have actively participated in 17 international, national, and regional training courses, scientific meetings, and conferences over the last five years. You have had 12 research papers published in international peer-reviewed journals. You have regularly featured in an Egyptian TV public education medical programme for the National Ministry of Health in Egypt. You have been a reviewer for several international peer-reviewed journals. You have received numerous international conference speaker invitations as well as editorial board membership invitations.

49. From the evidence presented, it was clear to the Tribunal that you have kept your knowledge and skills up to date and sought to improve your communication skills. It gave limited weight to your testimonials, but nonetheless it found the body of evidence you provided to be reassuring and compelling in relation to your clinical skills and competency as a doctor. It recognised that you have a record of some 35 years work in the field of gynaecology and obstetrics and have had an otherwise highly successful career. The Tribunal noted that the quality of your work has been recognised in Egypt through your promotion to Emeritus Professor. The Tribunal was reassured by the extensive evidence you presented of your continued work in obstetrics and gynaecology. The Tribunal was further reassured by the opinion of the Clinical director in Obstetrics and Gynaecology at Kingston Hospital NHS Foundation Trust, where you completed a week of clinical attachment in January 2017, that your "knowledge was consistent with someone who has been practising O&G at a senior level for many years."

36. No complaint was made by the GMC about these paragraphs. It is clear that the matters referred to in these paragraphs impressed the Tribunal.

(6)(e) The Tribunal's Decision: Conclusion

37. The Tribunal concluded as follows in paragraph 50 of its decision:

"50. The Tribunal was of the view that you do not pose a risk to patients. Given the sanction already imposed the Tribunal has concluded that the public's trust in the profession would not now be undermined by your restoration to the register. The Tribunal therefore determined that it would be in the public interest for your name to be restored to the Medical Register."

38. Dr Nooh placed considerable reliance on the tribunal's finding that he did not pose a risk to patients. The GMC did not challenge that finding.

(7) The Court's Approach to this Appeal

39. Subsections (3) and (4) of section 40A of the Act provide as follows:

"(3) The General Council may appeal against a relevant decision to the relevant court if they consider that the decision is not sufficient (whether as to a finding or a penalty or both) for the protection of the public.

(4) Consideration of whether a decision is sufficient for the protection of the public involves consideration of whether it is sufficient—

(a) to protect the health, safety and well-being of the public;

(b) to maintain public confidence in the medical profession; and

(c) to maintain proper professional standards and conduct for members of that profession."

40. As I have said, the protection of the public in this sense is also the over-arching objective of the GMC in exercising its functions: see subsections 1(1A) and (1B) of the Act.
41. Section 40A of the Act came into force on 31 December 2015. So far, relatively few appeals under that section have been heard. The first was GMC v Jagjivan [2017] EWHC 1247 Admin Sharp LJ set out the approach to be adopted by this court on such an appeal in paragraphs 39 and 410 of her judgment, as follows:

"39 As a preliminary matter, the GMC invites us to adopt the approach adopted to appeals under section 40 of the 1983 Act, to appeals under section 40A of the 1983 Act, and we consider it is right to do so. It follows that the well-settled principles developed in relation to section 40 appeals (in cases including: Meadow v General Medical Council [2006] EWCA Civ 1390; [2007] QB 462; Fatnani and Raschid v General Medical Council [2007] EWCA Civ 46; [2007] 1 WLR 1460; and Southall v General Medical Council [2010] EWCA Civ 407; [2010] 2 FLR 1550) as appropriately modified, can be applied to section 40A appeals.

40 In summary:

i) Proceedings under section 40A of the 1983 Act are appeals and are governed by CPR Part 52. A court will allow an appeal under CPR Part 52.21(3) if it is 'wrong' or 'unjust because of a serious procedural or other irregularity in the proceedings in the lower court'.

ii) It is not appropriate to add any qualification to the test in CPR Part 52 that decisions are 'clearly wrong': see Fatnani at paragraph 21 and Meadow at paragraphs 125 to 128.

iii) The court will correct material errors of fact and of law: see Fatnani at paragraph 20. Any appeal court must however be extremely cautious about upsetting a conclusion of primary fact, particularly where the findings depend upon the assessment of the credibility of the witnesses, who the Tribunal, unlike the appellate court, has had the advantage of seeing and hearing (see Assicurazioni Generali SpA v Arab Insurance Group (Practice Note) [2002] EWCA Civ 1642; [2003] 1 WLR 577, at paragraphs 15 to 17, cited with approval in Datec Electronics Holdings Ltd v United Parcels Service Ltd [2007] UKHL 23, [2007] 1 WLR 1325 at paragraph 46, and Southall at paragraph 47).

iv) When the question is what inferences are to be drawn from specific facts, an appellate court is under less of a disadvantage. The court may draw any inferences of fact which it considers are justified on the evidence: see CPR Part 52.11(4).

v) In regulatory proceedings the appellate court will not have the professional expertise of the Tribunal of fact. As a consequence, the appellate court will approach Tribunal determinations about whether conduct is serious misconduct or impairs a person's fitness to practise, and what is necessary to maintain public confidence and proper standards in the profession and sanctions, with diffidence: see Fatnani at paragraph 16; and Khan v General Pharmaceutical Council [2016] UKSC 64; [2017] 1 WLR 169, at paragraph 36.

vi) However there may be matters, such as dishonesty or sexual misconduct, where the court "is likely to feel that it can assess what is needed to protect the public or maintain the reputation of the profession more easily for itself and thus attach less weight to the expertise of the Tribunal …": see Council for the Regulation of Healthcare Professionals v GMC and Southall [2005] EWHC 579 (Admin); [2005] Lloyd's Rep Med 365 at paragraph 11, and Khan at paragraph 36(c). As Lord Millett observed in Ghosh v GMC [2001] UKPC 29; [2001] 1 WLR 1915 and 1923G, the appellate court "will afford an appropriate measure of respect of the judgment in the committee … but the [appellate court] will not defer to the committee's judgment more than is warranted by the circumstances".

vii) Matters of mitigation are likely to be of considerably less significance in regulatory proceedings than to a court imposing retributive justice, because the overarching concern of the professional regulator is the protection of the public.

viii) A failure to provide adequate reasons may constitute a serious procedural irregularity which renders the Tribunal's decision unjust (see Southall at paragraphs 55 to 56)."

42. In the present case, it was common ground that the Tribunal's decision fell within the scope of paragraph 40(v) of this guidance insofar as it concerned the Patient A allegations, but fell within the scope of paragraph 40(vi) insofar as it concerned the dishonesty allegations.
43. It is also relevant to note that the decision under appeal in this case was a decision to restore, rather than a decision to erase (or not to erase). To date, there has only been one reported decision on a "restoration appeal" under section 40A of the Act: GMC v Chandra [2017] EWHC 2556 (Admin). Mr Kennedy submitted that decisions in "erasure appeals" need to be treated with care when considering a "restoration appeal". In particular, what is said in paragraph 40(vii) of Sharp LJ's judgment in Jagjivan cannot simply be read across to the different context of a restoration appeal: see paragraph 27(ii) of Moulder J's judgment in Chandra.

(8) Ground 1

44. The GMC alleged by ground 1 that the Tribunal went behind the facts as found by the Panel and substituted its own assessment of the seriousness of Dr Nooh's misconduct. In the event, Ms Hearnden did not pursue the allegation that the Tribunal went behind the Panel's findings of facts. She concentrated on the allegation that the Tribunal substituted its own assessment of the seriousness of the misconduct. She relied, in particular, on the passages from paragraphs 32, 39 and 44 of the Tribunal's decision which I have underlined.

(8)(a) Ground 1: Context

45. In approaching ground 1, certain matters were common ground:

(1) Mr Kennedy accepted that the Tribunal could not properly go behind the Panel's: findings of fact; findings of misconduct; finding that Dr Nooh's fitness to practise was impaired; or decision that erasure was the appropriate sanction.

(2) It was, however, appropriate for the Tribunal to consider the seriousness of Dr Nooh's misconduct. This involved a different exercise from that carried out by the Panel. The Panel had to decide whether the misconduct was sufficiently serious to merit erasure. But there is a spectrum of cases which merit erasure: at one extreme, some cases may be just serious enough to merit erasure, while at the other extreme there may be cases which are so serious that it may be difficult to envisage that the practitioner's name could ever be restored to the register. It was not necessary for the Panel to address the question where this case fell on that spectrum. But it was a proper question for the Tribunal to consider, as part of its consideration of all of the facts of the case.

(3) Ms Hearnden accepted, as I have said, that the Patient A allegations may not, in themselves, have been sufficiently serious to merit erasure. The Panel's decision on sanction was based on its consideration of both the Patient A allegations and the dishonesty allegations.

(4) The fact that Dr Nooh had not appeared before the Panel did not preclude him from giving evidence to the Tribunal. It was appropriate for the Tribunal to hear evidence from Dr Nooh, not least as to the extent of his insight into his misconduct. That almost inevitably involved Dr Nooh giving evidence as to his perception of the facts which had been found to constitute misconduct on his part.

46. In my judgment, there was no suggestion by the Tribunal that it was doing anything other than starting from the premise that the allegations which I have quoted had been proved and constituted misconduct which impaired Dr Nooh's fitness to practise. But the Tribunal clearly did say (in paragraphs 39 and 44 of its decision) that it took a different view from the Panel of the seriousness of Dr Nooh's misconduct in relation to Patient A.

(8)(b) Ground 1: Paragraph 32

47. Ms Hearnden submitted that the Tribunal first started to go wrong, and to question the decisions of the Panel, in paragraph 32 of its decision. She relied on the sentence which I have underlined: see paragraph 23 above. Mr Kennedy submitted that that sentence had to be read in its context. He submitted that the paragraph as a whole was critical of Dr Nooh, not the Panel.
48. It appears to be the case that Dr Nooh was unwise in the way in which he dealt with the Panel in 2007. He could have done more to tell the Panel of his medical problems. He chose not to be represented at the hearing. If he had acted differently, the hearing might have been adjourned. Ms Hearnden did not dispute that as a proposition. She was not suggesting the Tribunal's conclusion on that issue was incorrect. Rather, her argument was that the Tribunal was wrong to address that issue at all.
49. The Tribunal had heard evidence from Dr Nooh (without, so far as I am aware, any objection from the GMC) about Dr Nooh's health issues at the time of the hearing before the Panel. It was appropriate for the Tribunal to say something about that matter in its decision. However, it is relevant to note that the Tribunal was not questioning the decision which the Panel actually took not to adjourn. Rather, it was addressing the hypothetical question of what the Panel might have done if Dr Nooh had acted differently.
50. Looking at paragraph 32 as a whole, two points emerge. The Tribunal was saying: first, that Dr Nooh cannot complain that the Panel hearing went ahead in his absence; and, secondly, that the Tribunal had the advantage of hearing evidence from Dr Nooh which the Panel did not have. Both of those points were correct. The first can be read as implicitly critical of Dr Nooh. More importantly, the Tribunal expressly said that the Panel and the GMC were not at fault. Overall, therefore, I do not read paragraph 32 of the Tribunal's decision as indicating that the Tribunal had misunderstood its role.

(8)(c) Ground 1: Paragraphs 39 and 44

51. I turn now to paragraphs 39 and 44 of the Panel's decisions, and in particular the sentences which I have underlined: see paragraphs 28 and 31 above.
52. In each of those paragraphs, the Tribunal referred to the evidence given to it by Dr Nooh. Having heard Dr Nooh, the Panel was clearly impressed by the fact that his clinical judgment as to Patient A's condition appeared to be both reasonable and correct. That appears to be what led the Tribunal to say that it took a different view about the seriousness of Dr Nooh's actions from the Panel. The GMC contends that the Tribunal effectively allowed Dr Nooh to conduct a quasi-appeal.
53. There was considerable debate before me as to the meaning of these two paragraphs in the Tribunal's decision. It has to be said at the outset that it was most unfortunate that the Tribunal should have expressed itself in this way. However, looking at these two paragraphs in the context of the decision as a whole:

(1) The Tribunal was not going behind the Panel's findings of fact. The Tribunal said in paragraph 44 that it did not seek to go behind the Panel's findings of fact. As I have said, Ms Hearnden did not pursue the allegation that the Tribunal went behand the Panel's findings of fact.

(2) Nor did the Tribunal express any disagreement with the Panel's finding that those facts constituted misconduct. Indeed, the Tribunal expressly referred to them as significant misconduct.

(3) Likewise, I do not detect any disagreement by the Tribunal with the Panel's conclusion that Dr Nooh's fitness to practise was thereby impaired.

(4) The Tribunal did not say that it was the Tribunal's view that Dr Nooh's name should not have been erased from the register.

(5) In referring to the Panel's conclusion that his misconduct was troubling, or the Panel's view as to the degree of seriousness of Dr Nooh's actions, the Tribunal must have been referring to those passages from the Panel's decision which I have quoted in paragraph 9 above. But in those passages the Tribunal was dealing with the whole of Dr Nooh's misconduct, whereas in paragraphs 39 and 44 of its decision the Tribunal was only addressing the Patient A allegations.

(6) It seems to me that the relevant passages in the Tribunal's decision are best read as saying that, taken by themselves, the Patient A allegations might not have been serious enough to merit erasure. As I have said, Ms Hearnden did not challenge that as a proposition. Potential for confusion was introduced by the Tribunal saying that it was taking a different view from the Panel, when the Panel had not addressed the seriousness of the Patient A allegations in isolation. Had the Panel done so, it might well have said that they alone did not merit erasure.

54. On analysis, therefore, it appears that the Tribunal was not in truth disagreeing with the Panel, but addressing a different question to the Panel. As I have said, the language used by the Tribunal in the underlined sentences was regrettable. But the substance of the decision is that the Tribunal took a view as to the seriousness of the Patent A allegations which was a legitimate one.

(8)(d) Ground 1: Dishonesty

55. The Tribunal dealt with the dishonesty allegations in paragraphs 45 to 47 of its decision. It is clear from those paragraphs that the Tribunal proceeded on the basis that Dr Nooh had been dishonest. The Tribunal commented in paragraph 46 of its decision that the findings of dishonesty were within a narrow compass and that the dishonesty was limited in nature. It was appropriate for the Tribunal to consider where on the spectrum of seriousness this case of dishonesty lay. That is not to undermine the proposition that dishonesty is always serious, but these are questions of fact and degree for the Tribunal to assess, and the dishonesty in this case was not as serious as in some of the reported cases. It consisted of answering "No" rather than "Yes" to a question on three occasions. It did not also involve fabricating documents, as in cases such as GMC v Theodoropoulos [2017] EWHC 1984 (Admin). These were appropriate matters for the Tribunal to take into account. The Tribunal did not say that it was differing from the Panel's assessment of the seriousness of Dr Nooh's dishonesty. I see no reason to conclude that the Tribunal formed the view that the dishonesty was not serious enough to merit erasure.

(8)(e) Ground 1: Conclusion

56. For the reasons which I have given, I do not consider that the appeal should be allowed on the basis of ground 1. That ground does not demonstrate that the Tribunal's decision was either wrong or unjust because of a serious procedural or other irregularity in the proceedings before the Tribunal.

(9) Grounds 2, 3 and 4

57. Grounds 2 to 4 overlap and are interrelated. It is convenient, therefore, to consider them together. By grounds 2 to 4 the GMC alleges that:

(1) The Tribunal failed to give adequate weight to Dr Nooh's lack of insight.

(2) The Tribunal failed to give any or any adequate consideration to the over-arching objective.

(3) The Tribunal failed to have any or any adequate regard to the seriousness of the dishonesty when applying the over-arching objective.

58. It cannot be said that the Tribunal failed to give any weight at all to the over-arching objective (which the Tribunal referred to in paragraphs 33 and 50 of its decision) or to the seriousness of Dr Nooh's dishonesty (which it addressed in paragraphs 45 and 46 of its decision). Consequently, the real question on grounds 2 to 4 is whether the Tribunal gave too little weight to these factors and to the extent of Dr Nooh's lack of insight.
59. A question for the Tribunal was whether, in the context of all of the other circumstances of this case, his dishonesty was so serious, and his insight into his misconduct was so limited, that the over-arching objective required that his name should not be restored to the register. In effect, the GMC contends that, even allowing for the discretion granted to the Tribunal, and giving the appropriate degree of respect to the Tribunal's expertise, the only answer which it could properly have given to that question was "Yes".
60. This cannot have been an easy judgment for the Tribunal. Although this case was not as serious as some, dishonesty by a professional man is always serious, and usually leads to erasure: see Nicholas-Pillai v GMC [2009] EWHC 1048 (Admin) at [27]; and Atkinson v GMC [2009] EWHC 3636 (Admin) at [13]. Dr Nooh's insight into his misconduct was limited, to say the least. Those factors presented a strong case for refusing Dr Nooh's application for restoration. Indeed, Ms Hearnden submitted that, if his evidence as to his insight remains unchanged, it will never be appropriate for Dr Nooh's name to be restored to the register.
61. Against that, the Tribunal had to set:

(1) its finding (in paragraph 50) that Dr Nooh does not pose a risk to patients;

(2) its finding (in paragraph 47) that it was extremely unlikely that there would be a repetition of Dr Nooh's dishonest conduct;

(3) its positive findings about Dr Nooh in paragraphs 48 and 49 of its decision; and

(4) the fact that Dr Nooh had already had his name erased from the register for 7½ years.

62. Looking at the three components of the over-arching objective:

(1) As Ms Hearnden accepted, the finding that Dr Nooh does not pose a risk to patients meant that the continued erasure of his name was not necessary to protect the health, safety and well-being of the public.

(2) So the key question was whether the maintenance of public confidence in the profession and of proper professional standards and conduct required that his application for restoration be refused.

63. The Tribunal's answer to that question was, in effect, that the period for which Dr Nooh's name had been erased from the register was, in all the circumstances, sufficient to meet those objectives. That is why the Tribunal said in paragraph 50 of its decision that "because of the sanction already imposed the Tribunal has concluded that the public's trust in the profession would not now be undermined by your restoration to the register."
64. Likewise, in relation to the Patient A allegations, the Tribunal expressed the view (in paragraph 42) that Dr Nooh should not be punished further. Ms Hearnden correctly pointed out that "punished" was the wrong word to use in this context, since the purpose of the disciplinary arrangements for medical practitioners is not punishment, but the protection of the public, as set out in the over-arching objective.
65. Nevertheless, when considering what is necessary to maintain public confidence or to maintain proper professional standards and conduct, it is appropriate to consider how long the sanction of erasure has been imposed for. In many cases, there will come a point when it is no longer necessary to continue the sanction.
66. On balance, and not without hesitation, I have come to the conclusion that the Tribunal's decision in this case was one which was open to the Tribunal in the exercise of its discretion, based on the application of its expert judgment to all of the circumstances of this unusual case. Accordingly, I conclude that the appeal is not made out on grounds 2 to 4.

(10) Ground 5

67. Finally, the GMC contended that the Tribunal failed to give adequate reasons for its decision. I have quoted the crucial parts of the Tribunal's decision at some length. The GMC plainly does not agree with the reasons there set out. In some respects, unfortunate expressions were used, as I have explained. But it cannot be said that the Tribunal has not set out its reasons.

(11) Conclusion

68. For the reasons which I have stated, I dismiss this appeal.
69. I conclude by expressing my gratitude to both counsel for their considerable assistance.