Phipps v General Medical Council [2005] EWHC 1608 (Admin)

Case No CO/5945/2004

[2005] EWHC 1608 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date Thursday, 21 st July 2005

Before

MR JUSTICE NEWMAN

Between

ROBERT PHIPPSAppellant

GENERAL MEDICAL COUNCILRespondent

(Transcript of the Handed Down Judgment of

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Mr Ian Pennock (instructed by Stachiw Bashir Green) for appellant

Ms Dinah Rose (instructed by Field Fisher Waterhouse) for respondent

Judgment

Mr Justice NEWMAN :

Introduction

[1]This is a statutory appeal under the Medical Act 1983 against a decision of the Professional Conduct Committee of the General Medical Council dated 28th October 2004. The Professional Conduct Committee (PCC) found the appellant guilty of serious professional misconduct and suspended him from practice for the maximum period of twelve months. The hearing before the PCC commenced on 8th May 2003 when the charges were read. On 12th May 2003 evidence from the appellant’s general practitioner was considered and the proceedings were adjourned. After the charges had been read, much of the time was taken up by an application by the appellant, who appeared in person, to stay the proceedings on the grounds that they constituted an abuse of process. The PCC refused a stay. The appellant next requested an adjournment on the grounds that he had already or immediately intended to institute proceedings by way of judicial review in the High Court in London to restrain further progress of the proceedings. This was not the first time he had requested an adjournment on the grounds of an intention on his part to commence judicial review proceedings in England. Earlier requests had been made, but had been refused. There have been judicial review proceedings in Scotland as well.

[2]At the hearing the appellant faced charges in connection with a retrospective application for accreditation for a Certificate of Higher Surgical Training (HST) which he had commenced by a letter dated 6th November 1992. Between that date and November 1993, when he was awarded the accreditation, and in the course of correspondence, to which I shall refer in detail, the appellant submitted a record card in support of his application. For reasons to which I will come, in 2001 the Royal College of Surgeons of Edinburgh, being the professional body which had accorded accreditation, withdrew it. The decision to withdraw went by way of internal review to an ad hoc appointed tribunal which upheld the withdrawal. This result led to proceedings in the Outer House of the Court of Session, instituted by the appellant, claiming judicial review of the decision of the Royal College of Surgeons of Edinburgh. In the meantime, for reasons, the detail of which the court is not fully informed, but it is understood were connected with the health of the appellant, the proceedings before the PCC did not resume until 15th March 2004. By that time the proceedings in Edinburgh were underway. In the course of this judgment, it will be necessary to refer to the Opinion of Lord Drummond Young dated 30th March 2005 in connection with the judicial review proceedings and his subsequent Opinion in connection with reserved matters, dated Friday 17th June 2005. The hearing of this appeal commenced in this court on Monday 20th June 2005.

[3]The total time taken before the PCC to deal with arguments of law, evidence and submissions was 35 days. It is fair to observe that some of the days were shorter than others. A partial explanation for this length of time is that the appellant was acting in person. His lack of legal representation has been made the subject of a ground of appeal in this court. It is said he could not adequately and fairly present his case. The charges concerned his application for accreditation and a subsequent successful application to be a consultant surgeon specialising in breast cancer at the Bradford General Hospital, but difficulties arose in confining the issues to the charges.

[4]Unquestionably the range of factual material covering many years was detailed and it gave rise to complexities in the PCC proceedings. The charges, in accordance with common form, contained a measure of narrative and factual content, but the gravamen was that the appellant had misrepresented his training history and associated experience, either deliberately with an intention to mislead and therefore dishonestly or carelessly and without sufficient attention to detail and in such a way that he had been guilty of misconduct.

[5]Whilst the charges alleged misrepresentation by reference to particular and specific representations, they did not particularise the respects in which the representations were false. The PCC found the charges proved, but did not specify the respects in which the representations were false. Some misrepresentations were found to be dishonest, others were found not to be dishonest but made in terms which amounted to professional misconduct. One of the grounds of appeal relates to the adequacy of the reasons given by the PCC for these varying conclusions.

[6]By an order made on 18th February 2005 Collins J. ordered that the appellant should have 21 days to produce a document containing all the relevant grounds of appeal and identifying all the evidence on which the grounds are based. On 15th March 2005 a document headed ‘Grounds of Appeal’ was lodged along with a Skeleton Argument. The Grounds of Appeal were in the following form:

“1. The Finding of the Professional Conduct Committee was against the weight of the evidence, not least, and amongst other things, because the appellant was entitled to be awarded the certificate of Higher Surgical Training and the Professional Conduct Committee of the General Medical Council either did not take this into account and/or misdirected itself to the contrary. 2. The Appellant did not receive a fair hearing, within the meaning of Article 6 of the European Convention on Human Rights, at the Professional Conduct Committee hearing of the General Medical Council because of the withdrawal of legal representation by the Medical Defence Union, the denial of legal aid and the subsequent inequality of arms between the parties.”

The complaint as to the adequacy of the reasons appeared in the Skeleton Argument.

[7]The transcript and associated documents lodged in support of this appeal extend through some nine lever arch files. The argument in connection with the appellant’s alleged entitlement to HST accreditation (Ground 1) was set out in detail in the Skeleton Argument. Further, it was submitted that, in so far as there were inaccuracies in the record card, they fell to be explained, not as misconduct but as the natural result of the frailties of recollection likely to be attendant upon looking back over so many years of a career record.

[8]Since the appellant’s submission has been throughout that his training and career entitled him to be accredited with the HST certificate, reliance was placed on the Opinion of Lord Drummond Young in the Outer House of the Court of Session dated 17th June 2005. By his Opinion, Lord Drummond Young held that the withdrawal of the appellant’s accreditation by the Royal College of Surgeons of Edinburgh was unreasonable. He concluded: “… it is, quite simply, unreasonable for a body such as the respondents not to give proper consideration to the circumstances of individual cases when they are considering a matter such as a withdrawal of specialist accreditation”. (paragraph 16) “… that the tribunal set up by the respondents, and in due course the respondents themselves, should have taken the petitioner’s full period of training at the Royal Marsden Hospital into account in considering whether he had satisfied the requirements of specialist accreditation. Their failure to do so was unreasonable, in the sense that no reasonable body in their position, properly directed upon the law, could have reached the same conclusion.” (paragraph 17) He pronounced a decree of declarator that, in removing the petitioner’s accreditation, the respondents had acted unreasonably and a decree of reduction of the respondent’s decision of 13th December 2002 to withdraw the accreditation. Other grounds of challenge which had been advanced were not successful. Contrary to the appellant’s argument, Lord Drummond Young did not decide that the appellant was entitled to accreditation. His conclusion was reached in judicial review proceedings and he was not concerned to decide whether the appellant’s training and career entitled him to be accredited, but whether the respondents had acted reasonably in withdrawing accreditation.

[9]The fundamental issue on this appeal in connection with the appellant’s accreditation is whether the decision to confer it was influenced by false and inaccurate information being deliberately and knowingly placed before the committee by the appellant. The charges relate to the conduct of the appellant, not whether, despite the dishonest misrepresentations, he was nonetheless entitled to accreditation.

[10]The fundamental issue raised the following questions: (1) Did the appellant make any misrepresentations of fact in filling out the record card? If yes, (2). Did they influence the decision to grant him accreditation? If yes, (3) Were the representations made (a) dishonestly (b) innocently? If either or both, (4). Did the appellant’s conduct amount to professional misconduct? If so, (5). What sanction or penalty was appropriate?

[11]The appellant has throughout these proceedings sought to defend himself against these charges by ascertaining that he “… properly qualified for the certificate of HST” (latest statement lodged with this court 16th June 2005). Even if he was properly qualified, it was for him to present his qualifications for accreditation accurately and honestly. Accreditation is a grant from the relevant College of Surgeons. It does not exist until granted and cannot be deemed to exist because the facts appear to meet the criteria required.

[12]Where deception has influenced a result, in this field of administrative law, as in contract “… the court does not allow an examination into the relative importance of contributory causes” (Barton v Armstrong

[1976] AC 104

P.C. at 118-119). Although no relief is being sought in these proceedings by the Royal College of Surgeons Edinburgh (the accrediting College), the approach must be the same, namely, that it is no answer to the charge that the grant of accreditation was influenced by dishonest misrepresentations to attempt to establish that “… there were other more weighty causes which contributed to [the] decision …” (see Barton v Armstrong 118 H).That is not to say that an honest belief in an entitlement will not be relevant to an issue of dishonesty and the question of penalty.

[13]As to the charges in connection with the application to Bradford General Hospital (“the Bradford charges”), a difference arises which calls for consideration. It gave rise to debate before the PCC and I shall return to it later.

[14]As the appellant’s argument developed, it became clear that counsel wished to counter the allegation that the decision had been influenced by the provision of false and inaccurate information by advancing a contention that accreditation had been granted on a particular basis, namely a “concession” outside the stated specific requirements, and that all the circumstances of the appellant’s career history, taken together, met the criteria for qualification under the “concession”. This had been foreshadowed by the Skeleton Argument dated March 2005 (repeated in the appellant’s statement lodged 16th June 2005), but the very broad terms of the first ground of appeal were not apt to permit such an argument to be advanced. Ground 1, as formulated, so far as it appeared to invite the court to rule on the appellant’s right to accreditation was problematical enough, but the new argument appeared to encompass a submission that the alleged representations and inaccuracies were immaterial because they related to a basis for accreditation from which the appellant had not benefited. The court ordered counsel to lodge further grounds of appeal clarifying the way in which the case was put. Counsel submitted grounds to the following effect:

“i. That the appellant was accredited with the HST on the basis of the concession outlined in the minutes of the SAC dated 27th November 1990. ii. That the career history of the appellant relevant to the criteria of that concession was correct. iii. That any inaccuracies, none being admitted, were not relevant to the granting of the concession and were not therefore material misrepresentations. iv. The PCC misdirected themselves in finding that the appellant was not entitled to accreditation of the HST. v. That misdirection was fundamental to, and underpinned, their other findings that the appellant was guilty of professional misconduct, which was serious, because they set that in a context of where they erroneously held the appellant was granted something to which he was not entitled.”

Miss Rose, for the respondent, did not object to these additional grounds.

The Charges

[15]“The Committee will inquire into the following charge against Dr Robert Francis Phipps, registered as of 1 Beechtree Court, Shipley, West Yorkshire, BD17 5TB, MB BCh 1978 Wales SR: That being registered under the Medical Act 1983, 1. a. On 6 November 1992 you wrote to the Joint Committee on Higher Surgical Training ("the JCHST") enquiring whether you could apply retrospectively for accreditation for higher surgical training, b. On 14 and 22 June 1993, the Secretary to the JCHST wrote to you bringing to your attention issues relating to accreditation, c. In order to obtain accreditation, on 18 August 1993 you completed and sent to the JCHST a record card that included details of your previous post-FRCS appointments and higher surgical training programme, d. On a day in November 1993 the Royal College of Surgeons of Edinburgh awarded you retrospectively a certificate of completion of higher surgical training on the recommendation for accreditation by the JCHST, who in turn followed the recommendation of the Specialist Advisory Committee in General Surgery; 2. The submitted record card contained the following misrepresentations; a. That starting in January 1986 for a period of 18 months, you were a research fellow/senior registrar at Queen Alexandra Hospital, b. That starting in August 1987 for a period of five months, you held the post of senior registrar at the Queen Alexandra Hospital, Portsmouth and St Mary's Hospital, Portsmouth, c. That starting in January 1988 for a period of five months, you held the post of senior registrar at St Helier Hospital, London, d. Between May 1988 and May 1990 you held the position of senior registrar at the Royal Marsden Hospital, London, implying that it was a substantive post. 3. The said record card influenced the Specialist Advisory Committee in General Surgery to recommend that you be granted retrospectively accreditation for higher surgical training; 4. Your actions as described in paragraphs 1(c) and/or 2 above were; a. inappropriate, b. intended to mislead, c. dishonest, d. unprofessional; 5. a. In 1998 you applied for the post of consultant general surgeon with a special interest in breast surgery with the Bradford Hospitals NHS Trust ("the Trust"), b. In furtherance of the said application; i. On 27 April 1998, the Trust received from you a curriculum vitae, ii. You submitted to the Trust a completed application form dated 18 May 1998, c. On 22 May 1998, the Trust interviewed you for the post of consultant general surgeon with a special interest in breast surgery, d. On 17 July 1998, after having interviewed you, the Trust offered you appointment as a consultant general surgeon with a special interest in breast surgery, e. By letter dated 22 July 1998, you accepted this employment, f. On 14 September 1998, you commenced your employment with the Trust as a consultant general surgeon with a special interest in breast surgery; 6. The submitted application form and/or curriculum vitae contained the following misrepresentations; a. During a surgical registrar post at the Kent and Canterbury Hospital, you were promoted to acting consultant for a period of three months, b. You had held a post as senior registrar employed by Portsmouth and South East Hampshire Health Authority at the Queen Alexandra Hospital, Portsmouth and St Mary's Hospital, Portsmouth, c. That at all times when employed at St Helier Hospital, London, you had held a post as locum senior registrar, d. You had held a two year post as senior registrar at the Royal Marsden Hospital working on the treatment of breast and colorectal cancer, e. You had held a four year post as consultant general surgeon in Dunedin Public Hospital, Dunedin, New Zealand but failed to provide information as to the distinction in the use of the term "consultant" in New Zealand and the UK at that time, f. You were the lead or sole author of the following publications; i. ‘Familial breast cancer and the Lewis antigen system’. European Journal of Surgical Oncology 1988; 14:352, ii. ‘Primary medical treatment in breast cancer’. British Medical Journal 1991; 302: 2-3, iii. ‘Apparent regression of rectal polyps in a patient with Gardner's syndrome receiving concomitant Tamoxifen Therapy’. Australia and NZ Journal of Surgery 1993; 63: 578-579. 7. The said application form and curriculum vitae failed to include reference to the following; a. your appointment as; i. A locum registrar at Bro Taf Health Authority between 7 October 1985-5 January 1986, ii. A registrar in South West London between 10-19 March 1986, iii. A registrar in South West London between 4-16 December 1987, iv. A locum senior registrar for South West Regional Health Authority between 21 December 1987 and 24 December 1987 and 28 December 1987-1 January 1988; b. The following periods during which you were not working in any N,HS post: i. 6 January 1986-9 March 1986, ii. 20 March 1986-1 May 1986, iii. 16 August 1987-17 September 1987, iv. 16-21 December 1987, v. 24-28 December 1987, vi. 22-25 April 1988; 8. The said completed application form and curriculum vitae formed the basis of the Trust's invitation to you to attend for an interview for the post of consultant general surgeon with a special interest in breast surgery; 9. The content of your curriculum vitae, application form and responses in interview for the post of consultant general surgeon with a special interest in breast surgery presented your career history in a way that was consistent with legitimate entitlement to accreditation for higher surgical training and entry on the specialist register when you knew or ought to have known that this was not the case; 10. a. In reliance upon the content of your curriculum vitae and application form and your responses in interview for the post of consultant general surgeon with a special interest in breast surgery, the Trust offered you an appointment as a consultant general surgeon with a special interest in breast surgery, b. You accepted the appointment when you knew or ought to have known that you were not entitled to be employed as a consultant general surgeon in that having regard to your true career history you were not entitled in 1993 or subsequently to; i. Accreditation for higher surgical training from the Royal College of Surgeons in Edinburgh and/or elsewhere; and/or, ii. Entry on the specialist register; 11. Your actions as described in paragraphs 6, 7, 9 and/or 10(b) above were; a. inappropriate, b. intended to mislead, c. dishonest, d. unprofessional; And that in relation to the facts alleged you have been guilty of serious professional misconduct.” b. On 14 and 22 June 1993, the Secretary to the JCHST wrote to you bringing to your attention issues relating to accreditation, c. In order to obtain accreditation, on 18 August 1993 you completed and sent to the JCHST a record card that included details of your previous post-FRCS appointments and higher surgical training programme, d. On a day in November 1993 the Royal College of Surgeons of Edinburgh awarded you retrospectively a certificate of completion of higher surgical training on the recommendation for accreditation by the JCHST, who in turn followed the recommendation of the Specialist Advisory Committee in General Surgery; a. That starting in January 1986 for a period of 18 months, you were a research fellow/senior registrar at Queen Alexandra Hospital, b. That starting in August 1987 for a period of five months, you held the post of senior registrar at the Queen Alexandra Hospital, Portsmouth and St Mary's Hospital, Portsmouth, c. That starting in January 1988 for a period of five months, you held the post of senior registrar at St Helier Hospital, London, d. Between May 1988 and May 1990 you held the position of senior registrar at the Royal Marsden Hospital, London, implying that it was a substantive post. a. inappropriate, b. intended to mislead, c. dishonest, d. unprofessional; b. In furtherance of the said application; i. On 27 April 1998, the Trust received from you a curriculum vitae, ii. You submitted to the Trust a completed application form dated 18 May 1998, c. On 22 May 1998, the Trust interviewed you for the post of consultant general surgeon with a special interest in breast surgery, d. On 17 July 1998, after having interviewed you, the Trust offered you appointment as a consultant general surgeon with a special interest in breast surgery, e. By letter dated 22 July 1998, you accepted this employment, f. On 14 September 1998, you commenced your employment with the Trust as a consultant general surgeon with a special interest in breast surgery; a. During a surgical registrar post at the Kent and Canterbury Hospital, you were promoted to acting consultant for a period of three months, b. You had held a post as senior registrar employed by Portsmouth and South East Hampshire Health Authority at the Queen Alexandra Hospital, Portsmouth and St Mary's Hospital, Portsmouth, c. That at all times when employed at St Helier Hospital, London, you had held a post as locum senior registrar, d. You had held a two year post as senior registrar at the Royal Marsden Hospital working on the treatment of breast and colorectal cancer, e. You had held a four year post as consultant general surgeon in Dunedin Public Hospital, Dunedin, New Zealand but failed to provide information as to the distinction in the use of the term "consultant" in New Zealand and the UK at that time, f. You were the lead or sole author of the following publications; i. ‘Familial breast cancer and the Lewis antigen system’. European Journal of Surgical Oncology 1988; 14:352, ii. ‘Primary medical treatment in breast cancer’. British Medical Journal 1991; 302: 2-3, iii. ‘Apparent regression of rectal polyps in a patient with Gardner's syndrome receiving concomitant Tamoxifen Therapy’. Australia and NZ Journal of Surgery 1993; 63: 578-579. a. your appointment as; i. A locum registrar at Bro Taf Health Authority between 7 October 1985-5 January 1986, ii. A registrar in South West London between 10-19 March 1986, iii. A registrar in South West London between 4-16 December 1987, iv. A locum senior registrar for South West Regional Health Authority between 21 December 1987 and 24 December 1987 and 28 December 1987-1 January 1988; b. The following periods during which you were not working in any N,HS post: i. 6 January 1986-9 March 1986, ii. 20 March 1986-1 May 1986, iii. 16 August 1987-17 September 1987, iv. 16-21 December 1987, v. 24-28 December 1987, vi. 22-25 April 1988; b. You accepted the appointment when you knew or ought to have known that you were not entitled to be employed as a consultant general surgeon in that having regard to your true career history you were not entitled in 1993 or subsequently to; i. Accreditation for higher surgical training from the Royal College of Surgeons in Edinburgh and/or elsewhere; and/or, ii. Entry on the specialist register; a. inappropriate, b. intended to mislead, c. dishonest, d. unprofessional;

[16]At this stage it will be convenient to highlight the content of the Bradford charges 9 and 10 which bear upon the question of entitlement to accreditation. Charge 9 alleges the appellant presented his career history in a way which was consistent with legitimate entitlement “… when he knew or ought to have known that this was not the case”. Charge 10(b) alleged that the appellant knew or ought to have known that he was not entitled to be employed as a consultant general surgeon “… having regard to your true career history” as he was not entitled to accreditation. As they stood, these charges undoubtedly widened and complicated the issues in connection with accreditation.

The Findings of the PCC

[17]The PCC found that:(1) On 6th November 1992 the appellant wrote to the Joint Committee on Higher Surgical Training (JCHST) inquiring whether he could retrospectively apply for accreditation for HST.

(2) That, having supplied his curriculum vitae, the Secretary to the JCHST wrote to him by letters dated 14th June 1993 and 22nd June 1993 drawing to his attention some specific points in connection with his ability to qualify for accreditation.

(3) That, by letter dated 18th August 1993 accompanying an attached completed record card, being a record card for enrolment, the appellant acted in order to obtain accreditation upon the basis of the information given on the record card. Although the PCC’s reasons do not refer to a letter dated 8th July 1993 from the appellant to the Secretary of the Joint Committee, a statement made in that letter to the effect that “the Senior Registrar position at the Royal Marsden Hospital was a substantive post … ” was in evidence before the PCC.

[18]The PCC found that the record card submitted contained the following misrepresentations:(i) Starting in January 1986 for a period of eight months, you were a Research Fellow-Senior Registrar at Queen Alexandra Hospital;

(ii) Starting in August 1987 for a period of five months, you held the post of Senior Registrar at Queen Alexandra Hospital, Portsmouth and St Mary’s Hospital, Portsmouth;

(iii) That, starting in January 1988 for a period of five months, you held the post of Senior Registrar at St Helier Hospital, London;

(iv) That between May 1988 and May 1990 you held the position of Senior Registrar at the Royal Marsden Hospital, London, implying that it was a substantive post;

(v) The Committee found that the record card influenced the SAC in General Surgery to recommend that the appellant be granted retrospective accreditation for HST;

(vi) The Committee found the misrepresentations in connection with the post of senior registrar for five months at Queen Alexandra Hospital and St Mary’s Hospital and of senior registrar for five months at St Helier Hospital to have been dishonest, having been made with the intention to mislead. The balance were found to be inappropriate and unprofessional.

[19]As a result, the PCC held that the submission of the record card was dishonest and was submitted with an intention to mislead.

The Findings in connection with the Application to Bradford Hospitals NHS Trust (“the Trust”)

[20]The PCC found that the application form and CV which the appellant had submitted contained the following misrepresentations:(1) That, during a surgical registrar post at the Kent and Canterbury Hospital, the applicant had been promoted to acting consultant for a period of three months;

(2) That at all times when employed at St Helier Hospital, London he had held a post as locum senior registrar; and

(3) That he had held a two year post as senior registrar at the Royal Marsden Hospital working on the treatment of breast and colorectal cancer, each to have been misrepresentations. The claims in relation to the time at St Helier Hospital were found to be dishonest, having been made with the intention to mislead, and the balance to have been inappropriate and unprofessional. Details of publications submitted with the curriculum vitae.

[21]The Committee noted certain admissions which had been made by the appellant and found as proved that he had incorrectly claimed to have been the lead or sole author in three publications cited in his application. These claims were found to be inappropriate and unprofessional and, in the case of two of the articles, his actions were held to be dishonest, having been done with the intention to mislead.

Admissions in connection with omissions from the application form and CV

[22]The PCC held that the failure to include reference to his appointments as(i) locum registrar at Bro Taf Health Authority between 7th October 1985 and 5th January 1986

(ii) registrar in South West London between 10th and 19th March 1986 and between 4th and 16th December 1987 and

(iii) locum senior registrar for South West Regional Health Authority between 21st January 1987 and 24th December 1987 and between 28th December 1987 and 1st January 1988. These omissions were found to be inappropriate and, in the case of the three month period during which he had worked at Bro Taf Health Authority, unprofessional.

[23]Admissions that the appellant had failed to mention in the documents a period from 6th January 1986 to 9th March 1986 and 20th March 1986 to 1st May 1986, during which he was not working in any NHS post, were found to be inappropriate and unprofessional.

Finding in connection with Charge 9 and 10

[24]The PCC found that the application form and the CV formed the basis of the Trust’s invitation to the appellant to attend for an interview and that, together with his responses in the interview, the appellant presented his career history in a way that was consistent with legitimate entitlement to accreditation for HST and entry on the specialist register when he knew, or ought to have known, this was not the case. Further, that on this basis, the Trust offered him the appointment, which he accepted, when he knew, or ought to have known, that he was not entitled to be employed as a consultant general surgeon. His actions in this regard were inappropriate, unprofessional and were done dishonestly and with an intention to mislead.

[25]The findings in connection with these two charges will have to be considered in the light of the terms in which the issue of accreditation was left to the PCC, after considerable discussion, by counsel for the GMC, the Legal Assessor, the appellant, and some members of the Committee.

PCC findings in connection with matters relevant to penalty

[26]The PCC expressed the view that proper standards of personal behaviour had to be observed at all times and that, as to the information which was incorrect but not dishonest, the Committee did not accept that it was an excuse simply to believe that the information was correct, because it was incumbent upon the appellant to ascertain the true facts with regard to his previous posts and to ensure that the information provided was both accurate and complete. The Committee considered that it was for the appellant to have made the necessary inquiries to obtain accurate information before making both his applications. The Committee observed that inaccuracies in connection with the authorship of publications were not acceptable in applications for employment. The Committee observed that the public, as well as potential employers, had the right to expect accurate and truthful information in applications. The Committee observed that doctors who provide misleading and dishonest information may be appointed to posts for which they are neither properly qualified nor sufficiently experienced, thus potentially it could place patients at risk. The Committee accepted there was no evidence that patients had been put at risk, but the Committee: “…. remain concerned that this could have been the case as [the appellant] had not undertaken a properly organised and supervised training programme. By claiming accreditation without such training you obtained a post for which you were not qualified, and gained significant advantage over those who were legitimately entitled to hold such a post.”… Understandably the appellant has relied upon this finding in support of his principal argument that the PCC held that he was not entitled to accreditation, and therefore misdirected themselves. In my judgment, the PCC were not required to decide whether the appellant was entitled to accreditation. So far as they might have done, it was at the urging of the appellant. At this part of the reasons the PCC are considering penalty. By this stage it had been concluded that he had influenced the grant of accreditation by making dishonest misrepresentations. Unsurprisingly the PCC regarded the appellant as though he was not accredited.

The accreditation scheme (“the Scheme”) and the central facts leading to the appellant’s accreditation

[27]The Scheme was summarised in some detail by Lord Drummond Young in his Opinion dated 30th March 2005 and I am indebted to the clarity of its exposition. I gratefully adopt the account, but I must draw attention to the most salient features of it as they affect this appeal. The detailed provisions of the Scheme have, from time to time, been laid down by the Joint Committee on Higher Surgical Training (JCHST) and have, from time to time, appeared in reports made by the JCHST. The report governing the content and requirements of the Scheme relevant to this appeal is the Fourth Report, dated 1st January 1987. The various specialities covered by the Scheme include general surgery, with which the appellant was concerned. Implementation has depended significantly upon Special Advisory Committees (SACs) who, among other functions, advise the JCHST in relation to procedures for HST.

[28]The purpose of the Scheme, as appears from the report, is that there should be programmes ensuring that there is a duly completed period of surgical training in each speciality for those persons who would normally be seeking consultant appointments in that speciality. It was not made a pre-condition of obtaining a consultancy that accreditation had been granted, but those who had been granted accreditation, after satisfactory completion of a training programme, were to be regarded by all college assessors on Advisory Appointments Committees as having met the criteria for consultant status. It was noted that it was open to assessors to recommend that, if they considered it necessary, the training programme should be completed before a successful applicant took up his or her post as a consultant.

[29]The inter-relationship of accreditation and consultancy is not central to any issue on this appeal, unlike the part of the report headed ‘Content of Training Programmes’. The SACs discharge functions in connection with the training programmes, including drawing up, inspecting, where necessary, and compiling a list of posts where programmes of training could appropriately be carried out. The SACs are also charged with a duty to keep a numerical register of trainees and details of their experience. So informed, SACs are able to make recommendations to the appropriate colleges in relation to the accreditation of candidates who have carried out approved programmes. As part of the operation in connection with these training programmes, the SACs allocated SR numbers (senior registrar numbers) to persons holding posts at senior registrar level or equivalent level, where that post had been approved for HST by the relevant SAC. An SR number is not to be confused with a CR number (career registrar number) which was issued to individuals currently at registrar level who desired to move to speciality training. The CR numbers were essentially statistical tools which assisted another related body operating under the scheme, namely the Joint Planning and Advisory Committee (JPAC) to determine a number of posts available for senior registrars or lecturers with senior registrar status in such a way as to satisfy the needs of the NHS and to provide a balanced career structure for those who wished to become consultant surgeons (see paragraph 4 Opinion of Lord Drummond Young).

[30]The regulations governing the content of training programmes, common to all specialties in the scheme, were: “(1) In order to qualify for accreditation, candidates must have completed … four years (… General Surgery …) in their chosen specialty in posts that have been approved by the appropriate Specialist Advisory Committee. (2) Candidates for accreditation must be enrolled for specialist training by the appropriate Specialist Advisory Committee. (3) The Joint Committee will obtain written evidence from the surgeons under whom they have worked that in their opinion that work has been satisfactory….”.

[31]The report provided, so far as general surgery was concerned, that the four year training period include:

“(1) At least three years must be spent as a senior registrar or in a post of equivalent responsibility and training potential. The post should rotate through units offering both academic and NHS service commitments. (2) The remaining year can be in a post approved by the SAC at registrar level provided that it is held in the post-fellowship period. This period may be in a clinical or a research post. (3) Provided that at least two of the four years are spent in clinical work in general surgery and the approval of the SAC has been obtained, up to one year may be spent in general paediatric surgery, or up to two years in transplant surgery or vascular surgery, or up to two years in urology in a programme approved by the SAC in urology. Up to six months may be spent in another surgical specialty in a programme approved by the appropriate SAC.”

[32]The appellant did enrol and receive a CR number in February 1989 which was subject to annual review. It placed him among the candidates who, it was recognised, intended to move towards obtaining consultant status. He was therefore enrolled for specialist training. But it will be remembered he left for New Zealand in May 1990.

The appellant’s progress towards accreditation

[33]The correspondence leading up to February 1989 is noteworthy. By a letter dated 30th October 1988 the appellant wrote to the Chairman SAC General Surgery at the Royal College of Surgeons:

“… I am currently Locum Senior Surgical Registrar to the Royal Marsden Hospital and have recently been interviewed by members of the College who have inspected the jobs at the Royal Marsden and the question of J-Pac numbers came up. Having completed my research for an MCh for which I took two years out of the clinical scene. I have not had any correspondence regarding the numbering of posts and as I understand it it will be obligatory to have a numbered post in order to apply for a Senior Registrar position. I will be grateful if you could help with my problem as I consider working at the Marsden as a Locum Senior Registrar a slightly anomalous position. I enclose a shortened Curriculum Vitae.”

[34]The appellant received a reply dated 7th November 1988 from the Chairman of SAC in General Surgery. It stated:

“… You are, indeed, in a difficult situation as a Locum Senior Registrar and, as I am sure you realise, you should attempt to obtain a substantiative (sic) Senior Registrar post as soon as possible. The Regional Training Committees are interviewing all the Career Registrars in each Region and this includes those trainees who are currently doing research but have nevertheless had a Career Registrar clinical training. You come into this category and if your training has been suitable and the Committee think you have a good chance of getting a Senior Registrarship, they will award you an SAC number. I must stress that, at the moment, this is purely an educational exercise and has nothing to do with the JPAC target which the Region will eventually be given. Although JPAC considers the Special Health Authorities separate from the Regions, we have asked the Northwest Thames Regional Training Committee to look at Marsden trainees and so they should have considered your name. May I suggest that you write to Mr John Sayles who is your Regional Adviser and he will explain the situation to you and tell you when the Regional Training Committee will be performing this exercise.”

[35]The appellant followed the advice in this letter and applied to the Regional Training Committee for a CR number. As I have already indicated, the Regional Adviser in General Surgery responded by a letter dated 7th February 1989:

“Your application for Career Registrar Number in General Surgery I am pleased to say that following your interview last month, it has been recommended to the SAC in General Surgery that you be awarded a CR number. I would remind you that your retention of this number will be reviewed annually.”

I would remind you that your retention of this number will be reviewed annually.”

[36]I am satisfied that at least, as a result of this exchange of correspondence, the appellant knew that a locum senior registrar’s post was not a substantive post and it follows that, unless the position changed, his post at the Royal Marsden was not a substantive post. I am not impressed by an argument (sensibly only faintly advanced) that the meaning of “substantive” could have been in doubt. It is clear from all the material that it meant not “locum”. Further, that he knew that a CR number meant that he was in a category of career registrar having a good chance of getting a senior registrarship. He could not have believed in October 1988 that he already held a senior registrarship. In his latest statement to this court the appellant asserts he was awarded a JPAC number and adds:

“In consequence of being awarded a JPAC number my post, as a Senior Registrar at the Royal Marsden, was converted to a permanent position”

. I regard this as a deliberate piece of obfuscation.

[37]It seems likely that the interviews referred to by the appellant, which prompted his October 1988 letter, are evidenced by a report from members of the SAC in General Surgery who visited the Royal Marsden Hospital in order to report on the current position so far as the surgical firms at the hospital were concerned. The only cause for some reservation stems from the date of the appellant’s letter (30th October 1988) and the report (Bundle 2 page 223) which refers to 31st October 1988. The visitors reported that there were three surgical firms, each consisting of two consultants, namely Mr Griffiths and Mr McKinna (colorectal, breast, GI, ovarian and soft tissue interest); Mr Gazet and Mr White (breast, GI and melanoma interest); and Professor Westbury and Mr Sinnett (breast, sarcoma, melanoma and head and neck). The appellant worked under Mr Griffiths and Mr McKinna. The report discloses that the establishment at Royal Marsden was for three senior registrars for one year, namely one to each surgical firm, and one post-fellowship registrar in the Academic Unit. The report continues:

“Two of the SRs rotate with The Westminster and St George’s Hospitals respectively, and carry their numbers with them from their parent Hospital. The third SR has a Royal Marsden number (approved by JPAC). The present incumbent of this numbered post is on secondment to St Mark’s and has held his current appointment for 10 years. We interviewed one SR in post (St George’s Rotation), two locum SRs and the newly appointed middle grade registrar from the Academic Unit.”

One of the two locum SRs there referred to was the appellant. The Royal Marsden SR numbered post was held by Mr Montgomery, the surgeon on secondment to St Mark’s, and the appellant was in post as locum in his absence having replaced a previous locum and in response to an advertisement for a locum. Mr Montgomery had been absent during many of the ten years he had held the appointment, but he had not relinquished his SR post at the Royal Marsden, which was the only Royal Marsden-held SR position. It is obvious that there can be but one incumbent of an SAC approved numbered post and the appellant could not have thought otherwise.

[38]It is clear to me that the appellant must have known, as a result of his interview by the visiting members of the SAC, that, in order to achieve accreditation, he had to hold posts which had been approved by the appropriate SAC. So long as there was only one SR approved post at the Royal Marsden and Mr Montgomery retained it, he could not hold the post.

[39]He must have clearly understood the distinction between the position he then held as a locum senior surgical registrar and that which he desired to obtain, namely a position as a senior registrar. When he followed the advice from the Chairman, SAC in General Surgery and applied for and received a CR number, he knew that it related to his post as locum senior registrar.

[40]It can be seen that his letter to the Chairman, SAC in General Surgery being dated 30th October 1988 was written five months after he had commenced his appointment at the Royal Marsden. He stated on his record card, when applying for accreditation, that between May 1988 and May 1990 he had held the position of senior registrar at the Royal Marsden Hospital, London. Charge 2(d) alleged and the PCC found that, in making that statement on the record card, he implied that the post he held was a substantive post. Despite the terms of the reply of Professor Browse dated 7th November 1988, “You are, indeed, in a difficult situation as a Locum Senior Registrar and, as I am sure you realise, you should attempt to obtain a substantive Senior Registrar post as soon as possible….” the appellant stated in his letter dated 8th July 1993 that “the Senior Registrar position at the Royal Marsden was a substantive post …”. The PCC had to decide whether that was a misrepresentation and, if so, whether it was made dishonestly. The appellant maintained that reasonable grounds existed for him to state that it was a substantive post.

[41]It is common ground that, when the appellant relinquished his post at the Royal Marsden, he left for New Zealand in order to take up a surgeon’s post at the Royal Dunedin Hospital. It is common ground that, at that date, he had not applied for accreditation upon the basis of the training programmes he had, by that date, fulfilled. His initial inquiry is dated 6th November 1992. He stated that previous to his appointment in New Zealand, “… I was the Senior Surgical Registrar for two years at the Royal Marsden Hospital, London. Before that I was Rotating Surgical Registrar on the St Thomas’s surgical rotation, followed by a period of research for which I was granted a thesis by the Welsh National School of Medicine. I believe a year on the St Thomas’s rotation, and a research post, can be counted towards higher surgical training”.

[42]The response of Mr Webber, the Secretary JCHST, dated 26th November 1992 is important. He replied:

“Thank you for your letter of 6 November regarding your wish to be considered for Accreditation in retrospect. The usual procedure is for a trainee to enrol with the appropriate Specialist Advisory Committee on being appointed to an approved Senior Registrar post. This enables the Committee to monitor his progress during the period of training leading to Accreditation. I must also point out that the usual requirement is for three of the four years of higher training to be at Senior Registrar level. Nevertheless, if you can kindly send me your CV, I shall ask the Chairman if the Committee can consider your request at their next meeting.”

[43]This letter must have come as a disappointment. He had not referred to the post he held at the Royal Marsden as a locum senior surgical registrar but, from the response, it would have been clear to him that enrolment with the appropriate SAC, on being appointed to an approved senior registrar post, was regarded as important. He must have known that he could not show enrolment and appointment to an approved senior registrar post. I am satisfied that he knew that since Mr Montgomery had remained in post throughout the time that he was at the Marsden and he had not met the enrolment requirement. I am not impressed by the suggestion that the CR number could be regarded as sufficient or his latest argument that a JPAC number altered the status of the post. Further, he was informed that the usual requirement was for three of the four years of higher training to be at senior registrar level and he had only put forward two years.

[44]As I find it is for this reason that, by his letter dated 4th June 1993, when he responded with his CV, he put forward a further basis for accreditation:

“I believe my position as consultant surgeon for the past two years and eight months practising in a university teaching hospital would make me eligible for retrospective accreditation.”

The next paragraph of his letter demonstrates that he had available to him the Joint Committee on Higher Surgical Training Fourth Report. He wrote:

“The regulations for general surgery higher training (Joint Committee on Higher Surgical Training fourth report) states that three years must be spent as a senior registrar or in a post of equivalent responsibility and training potential. I believe this would apply to the post of consultant surgeon at the University Hospital of Otago. The department is recognised for higher training for the Royal College of Australasian Surgeons (enclosed is a report from a higher surgical trainee). The regulations further state that a remaining year can be spent in a post approved at registrar level provided it is held in a post fellowship period. This I believe can be applied to the position of surgical registrar of St Thomas’s rotation which I held for two years. I was also a senior surgical registrar at Royal Marsden Hospital for a further two years.”

[45]It is likely that the appellant intended to invite the Committee to accord accreditation because he could show that he had been “in a post of equivalent responsibility and training potential”, namely as consultant surgeon, for two years and eight months which should be regarded as sufficient to meet the requirement of being in a post as senior registrar for three years and that he was putting forward as meeting the remaining year at registrar level, the St Thomas’s rotation which he had held for two years, and the senior surgical registrar at the Royal Marsden which he had held for two years.

[46]His reason for applying for retrospective accreditation and not doing so until he had been in New Zealand for 2-3 years is contained in the following paragraph of his letter dated 4th June 1993:

“… The reason for applying for retrospective accreditation is that the health services in New Zealand are being reorganised and to obtain specialist status the Higher Surgical Training Certificate is necessary. A recent application was turned down (attached document) due to the lack of a higher certificate. However, specialist status will be granted on obtaining retrospective accreditation from the United Kingdom. Not having specialist status does have employment and financial implications.”

[47]It appears that the recent application which had been turned down was his own. The documents which were enclosed related to his own application. They included a number of references and testimonials speaking to his qualities and qualifications for being included on the register. His CV referred to “Senior Registrar, The Royal Marsden Hospital … May 1988 – May 1990”. One referee recorded his understanding of the appellant’s training in England (see page 248 Bundle 2) as follows: “… I understand that he had not quite completed full training as a surgeon under the aegis of the Royal College of Surgeons but he had been practising as a Consultant Surgeon at Dunedin Hospital for the past two years”.

[48]The character of his continuing application for accreditation can be traced from the correspondence. Reliance upon his New Zealand consultancy was speedily put out of account by Mr Webber. On 14th June 1993 Mr Webber informed the appellant:

“I must make it clear that time spent as a Consultant cannot be counted towards Accreditation. A Consultant would not be regarded by this Joint Committee as equivalent as a trainee for this purpose. You would therefore have to rely on your time in the training grades of Registrar and Senior Registrar.”

[49]The Secretary informed the appellant that the Secretary would ask the Chairman of the Specialist Advisory Committee in General Surgery if his application could, in principle, be considered on the basis of his training grades of registrar and senior registrar and went on to emphasise:

“… I must add that Accreditation is not only a matter of completing so many years of training. It has always been the rule that training must have been completed to the satisfaction of the Consultants with whom the trainee has worked. This means that the SAC would be obliged to seek reports from those with whom you worked as a Senior Registrar. The SAC would also wish to be assured that your post at the Royal Marsden Hospital was a recognised and substantive Senior Registrar post obtained after advertisement and in open competition.”

[50]The Secretary supplied the appellant’s letter dated 4th June and his CV to Professor Johnson adding: “He did not apply for enrolment when he was a Senior Registrar at the Royal Marsden Hospital. I would be glad of your advice on whether or not I should now invite him to apply for Accreditation if he can confirm that his time there was in a recognised substantive post”.

[51]The CV supplied to Mr Webber and sent to Professor Johnson stated, under the heading ‘Senior Registrar Appointments’:

“Locum Senior Registrar St Helier Hospital, London January 1988 to May 1988 Senior Registrar, the Royal Marsden Hospital, Fulham Road, London May 1988 to May 1990…..”

Senior Registrar, the Royal Marsden Hospital, Fulham Road, London May 1988 to May 1990…..”

[52]The fact that the appellant had been in post as the locum senior registrar at the Royal Marsden was not disclosed. It is clear that had it been revealed, the Secretary would not have stated that an assurance was required that the post at the Royal Marsden Hospital was a recognised and substantive senior registrar post. The issue would not have arisen. This assurance was being sought by the Secretary as a pre-condition to the appellant being invited to apply. No qualified doctor having the seniority and knowledge of the appellant could have been in doubt that a locum post was not a substantive post. Indeed the appellant has not sought to suggest otherwise. The position now advanced is that it was thought by the appellant and/or he was regarded or should be regarded as having held the equivalent of a substantive post. In my judgment none of this is in point when considering whether he misrepresented the position. It is in point on the issue of whether he was dishonest.

[53]Professor Johnson commented in manuscript on the letter from the Secretary:

“Yes – please check the facts. He has 2 years post Fellowship and 2 years SR (if it was a substantive post). He needs another 1 year [indecipherable]. Is the locum SR on the same rotation (@Marsden and St Helier) …”

[54]The effect of Professor’s Johnson’s annotations were conveyed to the appellant by the Secretary in a letter dated 22nd or 23rd June 2003:

“In my letter of 14 June I mentioned that I would be seeking advice from the Chairman of the SAC regarding your request for Accreditation. He confirms that the crucial issue will be the standing of the Senior Registrar post you held at the Royal Marsden Hospital. He also points out, as indicated in my letter of 26 November 1992, that three of the four years of higher training need to be at Senior Registrar level. If therefore your two years at the Royal Marsden Hospital were in a substantive post, the question will be how to find a third acceptable Senior Registrar year. The Chairman has suggested that your five months as a locum Senior Registrar at St Helier Hospital could be counted if the post you held as a locum formed part of a rotation with the Royal Marsden Hospital. It would also be helpful if you could let me know how much, if any, of your time as a Research Fellow (January 1986 – January 1988) was spent in clinical work. We therefore need to establish the facts before deciding whether or not we can take the matter further.”

In the light of this letter, it cannot be suggested that the appellant was unaware how important “the facts” were and of an attendant need for care in presenting them.

[55]I have no doubt, in the light of the above exchange of correspondence, that the basis upon which the SAC were prepared to entertain an application from the appellant was that there was the possibility that three years spent as a senior registrar in a substantive senior registrar post, obtained after advertisement and in open competition, and which had been approved as a training post by the relevant SAC, might be met by the training record as held out by the appellant. There would also be a need for a fourth or remaining year to be identified as being in a post approved by the SAC at registrar level. Without these facts being presented there would have been no application. Contrary to the submission of Mr Pennock, counsel for the appellant, I can see no evidence to justify a conclusion that the Secretary to the SAC had in mind, at this date, any other route qualifying for entry on the register. For example, as reflected in the minutes of the JCHST dated 27th November 1990 which refer to a post-fellowship training of five years made up as follows (the so-called concession):(1) Two years as a senior registrar;

(2) Two years as a registrar;

(3) An additional fifth year in clinical practice. Counsel for the GMC does not dispute that, in some circumstances, two years as a senior registrar may be regarded as sufficient, if compensated by other training over a period of three years.

[56]It is clear to me that, in stating that the crucial issue “will be the standing of the Senior Registrar post… held at the Royal Marsden Hospital”, the Secretary was referring not simply to the need for it to be a substantive post, but also that it was a recognised post, namely approved by an SAC, and that it had been obtained after advertisement and in open competition. For completeness, it is also clear that, even if the requirements in connection with the Royal Marsden could be met, only five months of the required third year as a senior registrar at St Helier Hospital appeared available to be counted and then only if the post was held as a locum post on a rotation with the Royal Marsden Hospital. It has never been suggested it was on rotation with the Royal Marsden. It is now accepted that the period at St Helier as locum senior registrar was only for the period 8th February 1988 – 12th February 1988 and 1st April to 22nd April 1988 (see table reproduced from Opinion of Lord Drummond Young and attached to this judgment as Annex A).

[57]There can be no doubt that the appellant appreciated the detailed criteria he was being asked to meet (see his letter dated 8th July 1993). He confined his response to the Secretary in connection with the Royal Marsden post to confirming that it was a substantive post. He said nothing about its recognition or approval and nothing about it having been obtained after advertisement and in open competition. He turned his attention to the task of finding a “third acceptable Senior Registrar year”.

[58]His suggestion as to how the third year as a senior registrar might be found was as follows:

“During my research period at Portsmouth I spent a proportion of my time in clinical work. This consisted of ward rounds with the consultant as well as a regular breast clinic. The then “soft money” for this position ran out at eighteen months and for the remaining six months while writing my thesis I filled in as locum senior registrar (part of the St Thomas’s rotation) both in Queen Alexandra and St Mary’s Hospital, Portsmouth. I would also point out that during the research position I also filled in for holidays and study leave for the senior registrar which I believe accounts for a further two months in all. It is not unusual for research fellows to occupy senior registrar locums. Following my research I moved on as locum senior registrar at St Helier’s Hospital for five months which is also part of the St Thomas’s surgical rotation and then on to the Royal Marsden Hospital for a further two years.”

I read that paragraph as a case for concluding that he did six months as a locum senior registrar both in Queen Alexandra and St Mary’s Hospital in Portsmouth. In addition, filling in for holidays and study leave as a senior registrar another two months could be found. That, thereafter, he moved on as locum senior registrar at St Helier’s Hospital for five months. Those months totalled thirteen months and were put forward to qualify for the third year as a third acceptable senior registrar year. This letter has to be contrasted with charges 2(a), 2(b) and 2(c) which were based on the Record card (page 264-5) where no reference was made to the posts being locum.

[59]His letter continued by close reference to the terminology of the Fourth Report of the JCHST. With the basis of the Scheme in mind, and in particular the need to show three to four years in each of the major surgical specialities after the pre-fellowship period, he went on to state:

“My post fellowship training has been 1. two years St Thomas’s surgical rotation 2. eighteen months research fellowship plus six months senior registrar locums 3. five months senior registrar locum St Helier Hospital (St Thomas’s rotation) 4. two years senior registrar at the Royal Marsden Hospital….”

. Apart from the absence of a reference to the two months filled in for holidays and study leave as a senior registrar, this was a summary of the previous paragraph.

[60]This information, some of it additional to that earlier received, was passed on to the Chairman, SAC in General Surgery by the Secretary who observed:

“He has no more than two years as a substantive Senior Registrar but was appointed to that post in May 1988, having obtained the FRCS in 1983. It may be possible therefore for him to qualify for the concession that would allow him two years of retrospective recognition. If you think his case is strong enough, I shall ask him to complete the usual Record card and seek reports from the Consultants with whom he worked at the Royal Marsden Hospital.”

On that letter Professor Johnson marked in manuscript the comment “Yes. May”.

[61]The appellant was not informed of the manuscript notification or the effect of the letter suggesting that the concession might apply, but he was asked by letter dated 28th July 1993 to complete and return the Record card. Emphasis was placed on the need to name the consultants with whom he worked during his time as “Senior Registrar at the Royal Marsden Hospital”. When responding to this letter on 3rd August 1993, the appellant stated that he was:

“… placed in a position of losing my employment due to a technicality over retrospective accreditation, ie on my three years as a consultant surgeon not being regarded for accreditation purposes….”

[62]His record card asserted: eighteen months period at the Queen Alexandra Hospital in Portsmouth in a post graded as “Research Fellow/SR”. Further, that in August 1987 for five months he held a post of senior registrar at the Queen Alexandra Hospital and St Mary Hospital, Portsmouth. From January 1988 for five months senior registrar St Helier Hospital and then from May 1988 to May 1990, two years, senior registrar at the Royal Marsden Hospital.

[63]The Secretary duly wrote to Mr McKinna and Mr Griffiths, the consultants at the Royal Marsden, observing to each:

“Mr Phipps has suggested that I write both to you and to Mr Griffiths regarding his time as a Senior Registrar at the Royal Marsden Hospital from May 1988 to May 1990.”

Mr McKinna replied by a letter dated 6th September 1993 detailing the character of the elective general surgery in breast and abdominal disease which the appellant had carried out and speaking to the experience in the surgical assessment of patients and exposure to the management of breast cancer and medical treatment and chemotherapy for the advanced disease of breast cancer and his participation in the programme concerned with primary medical therapy in operable breast cancer with large tumours. The opinion of Mr McKinna was stated as follows:

“Mr Phipps is a good, well trained surgeon and I was delighted to hear that he had obtained a formal consultant post in New Zealand soon after he arrived in that country. I can support his application for recognition of higher surgical training and the appropriate accreditation without any hesitation.”

Mr Griffiths replied by a letter dated 6th September 1993 stating:

“Mr Phipps worked with me as Senior Registrar at the Royal Marsden Hospital from May 1988 to May 1990. He was a very capable surgeon and able to undertake all duties with skill and caring. He got on well with all his colleagues and was well liked by patients and staff. I recommend him most highly for accreditation.”

[64]The SAC in General Surgery met on 20th September 1993 and recommended accreditation. According to the minutes of the JCHST held on 28th September 1993 at the Royal College of Physicians and Surgeons of Glasgow, among those present being Professor Johnson, the Chairman of SAC in General Surgery, it was resolved that:

“it be recommended to the appropriate Colleges that Certificate of completion of training be awarded to … Robert Francis Phipps Royal Marsden…”

. The minutes do not disclose the basis upon which the Committee resolved to grant accreditation. It accepted the SAC recommendation. The appellant was informed by a letter dated 30th September 1993 that the Committee had agreed that he had satisfactorily completed higher surgical training and the matter was left for the Edinburgh College to award the certificate. Contrary to paragraph 41 of the appellant’s statement to this court, Mr Webber did not confirm to the PCC that the appellant had been granted accreditation upon the “… basis of the alternative method of qualifying”. Mr Webber was asked by the Legal Assessor: “… So, you cannot tell this Committee what the SAC took into account and what it left out of account when deciding to make its recommendation? To which Mr Webber replied: “That is right. I mean I can only, you know, by looking at the papers that are with you, surmise” (transcript B6. 1282).

Issues on the Appeal

[65]The respondent put in a Skeleton Argument dated 10th June 2005. The appellant responded with a Supplementary Skeleton Argument dated 17th June 2005. It took into account the Opinions of Lord Drummond Young (30th March and 17th June 2005). Paragraphs 3-6 stated:

“3. It is respectfully submitted that the Respondent has correctly crystallised and identified the issue of the status of the position of the two years that the appellant spent at the Royal Marsden Hospital (“RMH”) as the ‘crucial issue’ in the first ground of appeal. 4. If, as the appellant submits, the two years spent at the RMH as a senior registrar ought to be recognised towards his period of training then he was entitled to be accredited with the certificate of Higher Surgical Training (“HST”) and his first ground of appeal ought to be upheld. 5. If, as the Respondent submits, the two years spent at the RMH as a senior registrar ought not to be recognised towards his period of training then he was not entitled to be accredited with the certificate of HST and his first ground of appeal ought to be dismissed. 6. Accordingly, it is respectfully submitted that the only issue relevant to ground one that this Honourable Court needs to determine is whether or not the two years that the appellant spent at the RMH, as a senior registrar, ought to count towards the period of training required in order to be accredited with the certificate of HST.”

[66]The analysis offered by the appellant is imperfect. The phrase “crucial issue” was not used in connection with the ground of appeal, but in connection with the SAC’s willingness to entertain the application at all. The respondent’s concentration on the locum character of the Royal Marsden post was driven by the appellant’s assertion that he was entitled to accreditation (paragraphs 20, 21, 23 and 31 of the Skeleton Argument March 2005). The Grounds of Appeal addressed the PCC’s findings of dishonesty in connection with Queen Alexandra and St Helier Hospital in paragraphs 29 and 30 of the March 2005 Skeleton, but did not deal with the essence of the findings that the Record card did not state that the posts were locum posts. Thus, even if the appellant was to be successful in his argument over the Royal Marsden, this court could not overlook or disregard the findings on charges 2(a), (b) and (c).

[67]With those qualifications, the analysis and paragraph 5 as set out in the previous paragraph, in particular, can be taken as the starting point on ground 1, along with the grounds referred to in paragraph 14 above.

[68]The appellant submitted that the Royal Marsden post:(1) had been approved by the appropriate SAC;

(2) that the appellant was enrolled with the SAC for specialist training;

(3) that the appellant was employed as a senior registrar;

(4) that Mr McKinna had provided a witness statement testifying to his belief that the post was a substantive post and that: “Nevertheless, I can state quite categorically that the post which he held for two years at the Royal Marsden was ‘a post of equivalent responsibility and training potential’ as prescribed by the regulations in force at that time”.

(5) that the addition of the term “locum’ for a limited period of time can only be indicative of a temporary contract rather than a permanent one and can have no relevance to whether the SAC training requirements had been met.

(6) that on the relevance of “locum” the Opinions of Lord Drummond Young should be followed.

[69]It is disingenuous to suggest that “the post” had been approved. Mr Montgomery’s post had been, but the appellant’s post (however described) had not been approved as an SR post as opposed to the appellant having enrolled with the SAC as a career registrar. He never succeeded to Mr Montgomery’s post. The appellant had been enrolled with a CR number. Neither the SAC, who recommended accreditation, or the Joint Committee, which granted it, were invited to consider that he had been “employed” as a senior registrar because the NHS Pensions Agency documentation evidenced that to be the case. Nor was the Joint Committee invited to consider Mr McKinna’s view that it was a “post of equivalent responsibility and training potential”. This statement made by Mr McKinna post-dated the grant of accreditation. Nor was any Committee invited to consider that it could ignore the locum status of the Royal Marsden post and regard it as a matter of contractual status. No Committee was informed by the appellant that it was a locum position. On the contrary, he supplied a statement to the SAC in General Surgery in which he claimed it was a substantive post.

[70]For completeness, I reject the submission, only faintly advanced, that the post had been advertised in the manner the Committee regarded as relevant. It had only been advertised as a locum post and the relevant competition did not come from those seeking a substantive post. Finally on the issue of locum post or not, there has been no answer to the untenable fact that the appellant cannot have regarded the post as “a substantive post” from the outset. He wrote expressing the anomaly of his position. The idea that it can, for the purpose of this appeal, somehow be regarded as retrospectively made substantive borders on the absurd.

[71]The PCC concluded that the appellant had made misrepresentations of fact in filling out the record card. Some were admitted. In particular, it found that the appellant had misrepresented the status of his position at the Royal Marsden. There was ample evidence to support that conclusion. The arguments advanced to this court, for the reasons I have given, are wholly lacking in merit.

[72]As to whether the misrepresentations were made dishonestly or innocently, there was an abundance of evidence to support the conclusion that in claiming that the Royal Marsden post was a substantive post, the appellant deliberately stated that it was, when he knew that it was not. The PCC had ample opportunity to assess the appellant both as an advocate and a witness. No ground has been advanced for this court to reach any other conclusion than that the appellant acted dishonestly.

Upon what basis was accreditation granted?

[73]If it was relevant (which it is not) to determine upon what basis accreditation had been granted, it would not be possible to do so on the evidence before the court.

[74]In my judgment the evidence overwhelmingly establishes that:(1) the SAC would only put forward his application to a committee for consideration if his position at the Royal Marsden was a substantive position, obtained after advertisement and in open competition;

(2) it was essential to establish all the facts in connection with the appellant’s career history and record of training;

(3) that the purpose in requiring the appellant to fill out a Record card to include such facts was to enable the Committee to consider the facts as they appeared from the card;

(4) that the Joint Committee must have made its decision to recommend accreditation after considering all the facts on the card. I have no hesitation in concluding that all the facts in connection with his career history and record of training as stated on the card must be taken as having influenced the decision. In truth, there has been no submission to the contrary, despite the lengthy convoluted arguments addressed to support an entitlement to accreditation.

The issue of entitlement to accreditation as it affected charges 9 and 10

[75]The Skeleton Argument submitted with the Grounds of Appeal contained the submission that “it is abundantly clear that Mr Phipps was entitled to be accredited with the HST by reason of the matters set out in paragraph 21”. Thereafter a breakdown of the training record was laid in support of an argument that the criteria for the application of the concession had been met. In short:(1) Two years as a senior registrar at the Royal Marsden Hospital;

(2) Two years as a registrar at the Kent and Canterbury Hospital and St Thomas’s Hospital.

(3) The final requirement, of a fifth year in clinical practice, post-fellowship, was said to be met by a combination of a number of positions, including a variety of locum registrar and registrar positions at various hospitals, but not, at least expressly, the five months as “senior registrar” at the Queen Alexandra Hospital and St Mary’s Hospital at Portsmouth asserted in the Record card nor the five months from January 1988 as “senior registrar” at St Helier Hospital. Such reference as appears to a position at the St Helier Hospital is as a registrar.

[76]Paragraph 23 of the Skeleton asserts the following:

“The Appellant wrote to the JCHST and SAC on 6th November 1992, 4th June 1993, 8th July 1993, 3rd August 1993, 10th August 1993 and 18th August 1993. In that correspondence the Appellant disclosed fully the nature of his appointments and whether, for example, they were locum positions or not…”

The breadth of this assertion is wholly unjustified by the letters referred to save that the letter of 8th July 1993 did refer to the locum status of the senior registrarships at Queen Alexandra and St Mary’s Hospital, Portsmouth and the senior registrar position at St Helier Hospital, but no reference was made to the locum nature of the post at the Royal Marsden then or at any other time. The impact of the assertion, so far as it is correct, is limited because the charges were based on the statements in the Record card.

[77]Despite the overwhelming evidence to support the case that the grant of accreditation had been influenced by the statements in the record card, at the hearing before the PCC, the appellant was entitled to advance a defence based upon a contention that he had presented, whatever the inaccuracies which the PCC concluded the Record card contained, sufficient facts to merit accreditation being granted on some basis or another. It is recognised that he was not bound to accept that the case for the decision being influenced by inaccuracies had obviously been made out, despite the weakness of his case to the contrary. Further, he was entitled to present the arguments as a line of defence in support of his denial of dishonesty. Any belief held at the time the misrepresentations were made that his training entitled him to accreditation was a relevant consideration in deciding whether he had acted dishonestly. That said, it is not at all clear that his case was that, at the time he made the misrepresentations, he did so because he believed he was entitled to accreditation in any event.

[78]More particularly, his belief at the time and after he was accredited was specifically in issue in charges 9 and 10. It was alleged that he knew that his accreditation was not legitimate but, nevertheless, put it forward to obtain the post of consultant. Unsurprisingly there has been no argument against the proposition that if he acted dishonestly to obtain accreditation he must have known he had not obtained it legitimately.

[79]In the light of the foregoing, it is important to record that the basis upon which accreditation had occurred or might have been justified were explored extensively before the PCC. The appellant repeatedly put to the Secretary of the SAC that he had received a concession of simply two years at senior registrar level and two years as a registrar in his post-fellowship training period. He made the same point to Mr Raymond Kirk (SAC member in 1989) who suggested that it was unlikely that Professor Johnson had given Mr Phipps the benefit of the concession. Mr Kirk also observed that if a senior registrar trainee had done the requisite training, but had not been appointed to the position by an appointments advisory committee, then he could not be accredited for completion of HST even if he was supported by his consultants. This was plainly a reference to an argument advanced on the basis that both Mr Griffiths and Mr McKinna had, by the time of the hearing in the PCC, given statements to the effect that the appellant had received exactly the same training as the holder of the underlying substantive post would have received. Mr McKinna had stated that he and Mr Griffiths trained and supervised the appellant’s work with the intention that the appellant should fill the substantive training post.

[80]The record of the proceedings satisfies me that all the underlying factual contentions upon which the appellant then relied in support of his claimed actual entitlement to accreditation were canvassed in detail before the PCC. Unsurprisingly they led to a need for the PCC to be advised as to how far it was an issue for the Committee to decide whether his claim was made out or not and what was the nature of the case raised and relied upon by the GMC under charges 9 and 10.

[81]The difficulty was raised by the Chairman in the course of final submissions (see page 2302), but the matter can be picked up a little earlier at page 2299 where the Legal Assessor addressed counsel for the GMC, Mr Tehrani, as follows:

“It is to do with the issue of the minutes and their relevance and whether it matters what the Council, the relevant Committee or in the end the College might have done if they had known that things were different assuming that there was something wrong with what was submitted to them in the CV…. Because everyone agreed yesterday that we are not re-running the actual decision that was made to grant accreditation… and most of the minutes seem to be geared towards showing ‘Well, this is probably what was in the collective mind of the Committees…’, if they have such a thing ‘… when accreditation was granted’”

. In response, the Legal Assessor correctly identified that in the first part of the Heads of Charge, namely 1 to 4, there was no need to discuss the grounds upon which accreditation was in fact granted, but he turned to charges 9 and 10 and to the phrase “legitimate entitlement to accreditation … when you knew or ought to have known that this was not the case”. The Legal Assessor asked Mr Tehrani:

“And what I want to know really there is does the Council say, well, at that stage it is legitimate to look at what the various Committees and the College might have done if they had known the true facts, or should in Head of Charge 9 “consistent with legitimate entitlement” read for example or be understood to mean, “It was consistent with you having legitimately obtained accreditation which you would not have done if you had submitted false information?”

Mr Tehrani, replied “It is the latter position”.

[82]Further discussion led to the Legal Assessor stating:

“The Council’s case is that it does not matter what might have happened. If the information was false, deliberately or otherwise, you were not entitled to accreditation”

. And then he went on to refer to charge 10:

“… having regard to your true career history you were not entitled in 1993 or subsequently to …” again is it the Council’s case that that simply means, “Well, because you had submitted – allegedly submitted – false information you were not entitled to it on any ground”

. Mr Tehrani replied “Yes”, to which the Legal Assessor added:

“You might have been if you had submitted correct information, but that is irrelevant?”

Mr Tehrani replied “Yes”, and the Legal Assessor added:

“And that you never became entitled at any time after 1993 because you never corrected any errors?”

Mr Tehrani replied “Yes”, and the Legal Assessor added “That is the way the case is put?” Mr Tehrani again replied “Yes”.

[83]The record shows that at the invitation of Mr Phipps, page 2301, the Legal Assessor came back to the point:

“What I was trying to see is that there might be an argument as to entitlement, whether, for example, I am entitled to call myself a Bachelor of Arts because I have done the exam, or because it has been marked as a pass, or because I have been to see the Vice-Chancellor or I have had the certificate in the post, and I just wanted to be clear about that and how the Council understands the charge.”

This led to confusion in the minds of at least one of the Committee and the Legal Assessor was asked to sum the matter up again. He went on to say:

“.. my understanding of the Council’s case – and, as I say, it is entirely open for Mr Phipps to argue that actually the charge means something different. But as I understand the way it has been presented is that these two charges or Heads of Charge are interlinked in this sense, that it is the Council’s case that accreditation was granted on the basis of wrong or inaccurate information. It may have been deliberately false, it may have been innocently false, and that is a matter for discussion and decision, but wrong/inaccurate information. If it was granted on the basis of inaccurate information then the candidate was not properly entitled to accreditation, because no Committee or College would have granted accreditation on the basis of inaccurate information if they had known it to have been inaccurate, and therefore it does not matter whether had they known the true facts they would actually have given accreditation because that position never arose. And then 10(b) as I understand it follows on automatically that, if that is the position and if Mr Phipps knew that he had given inaccurate information, then it is said he ought to have realised that the College would not have given him accreditation on the basis of inaccurate information and therefore he knew that he had not been entitled to accreditation. In other words, that is why I use the phrase it had not been obtained legitimately because it was on the basis of inaccurate information.”

Upon this Mr Tehrani commented: “Yes, that is exactly how the Council puts its case”.

[84]It is not arguable that the PCC could have misunderstood the case in connection with the record card. The case required the Committee to be sure that accreditation was granted on the basis of wrong or inaccurate information, that is, influenced by such information. And, if so, whether it was deliberately or innocently false. As to the Bradford charges, the Committee had to be sure that the appellant knew or ought to have realised that an accreditation based on the provision by him of inaccurate information was illegitimate.

The Opinions of Lord Drummond Young

[85]In his Opinion of 30th March 2005, Lord Drummond Young set out the conclusions and recommendations of the tribunal which had withdrawn the appellant’s accreditation and what were the subject of challenge in the judicial review. The tribunal’s conclusions were, in summary,(1) that the decision made by the SAC in granting accreditation appeared to have been based on misleading information. In particular, the training record (the Record card) had stated that the appellant had undergone five months of training from August 1987 at Queen Alexandra Hospital and St Mary’s Hospital in Portsmouth at senior registrar level whereas, in reality, only a few short periods were carried out at locum senior registrar level and the rest at various other grades to cover a series of holidays and other absences;

(2) that the training record stated he had undergone five months’ training from January 1988 at St Helier Hospital at senior registrar level whereas, in reality, only a few short periods were actually carried out at locum senior registrar level to cover a series of holidays and other absences;

(3) the training record stated he underwent a two year period from 1988 to May 1990 as senior registrar at the Royal Marsden Hospital and that, notwithstanding the fact that Mr McKinna and Mr Griffiths, “his trainers”, were under the impression that the senior registrar post filled by the appellant at the Royal Marsden was a substantive post, in reality this was a locum senior registrar appointment;

(4) that the appellant knew, as a result of his correspondence with Professor Browse, that he was in an anomalous position as a locum senior registrar at the Royal Marsden and that he understood it would be obligatory to have a numbered post in order to apply for a senior registrar post;

(5) that the appellant had received a career registration number for one year subject to annual review and, despite this clearly referring to a career registration number, the appellant had erroneously assumed that he was now in a substantive senior registrar post. That he had made no attempt to correct this assumption or to obtain confirmation of it in writing. Further, he did not enrol with the SAC as would have been required on gaining a substantive senior registrar post.

[86]The conclusion of the tribunal was as follows:

“On the purely technical matter as to whether Mr Phipps had fulfilled the requirements for accreditation as laid down by the Fourth Report of the Joint Committee on Higher Surgical Training, dated 1987, and on the basis of the above, the tribunal do not feel that the accreditation is valid. It is our opinion that had the SAC in General Surgery been aware that all the SR posts listed in his JCHST application were locum and not substantive, Mr Phipps would not have been awarded retrospective accreditation. Our recommendation to the Council of the Royal College of Surgeons of Edinburgh is that Mr Phipps’ accreditation be withdrawn.”

The Opinion of Lord Drummond Young records that the conclusions of the tribunal in connection with the posts at senior registrar level at Queen Alexandra and St Mary’s Hospital and at the St Helier Hospital being only locum posts and not being held for as long a period as the training record indicated, was not in dispute. This part of the case has not been in dispute on this appeal.

[87]Lord Drummond Young paid close regard to a statement which the appellant had placed before the tribunal that the appellant recorded his view that it was improbable that Mr Montgomery would ever return to the Royal Marsden Hospital and that the two consultants for whom he worked informed him that, with the approval of their colleagues, they would be recommending to management that his locum post should be converted into a substantive one. He recalled having discussions with one of the hospital administrators about the financial implications of such change because his pay as a locum was higher than that of a substantive senior registrar. Thereafter he asserted he proceeded on the assumption that his post was substantive. Further, that the substantive nature of the post had retrospective effect, since no change in the nature of his work and responsibilities had been involved.

[88]Lord Drummond Young found support for this account in the statements from Mr Griffiths and Mr McKinna. Mr McKinna had stated that it was clear that the substantive post was approved by the SAC for general surgical training and should accordingly have had its own SAC number. The letter also went on to indicate that the locum post that the appellant filled was advertised and Lord Drummond Young concluded that that was wholly consistent with the appellant’s own statement that the locum appointment had been advertised and obtained in open competition. The impact of this evidence upon Lord Drummond Young can be seen from his Opinion (paragraph 32) where, in commenting upon the appellant’s statement that the Royal Marsden Hospital post had been a substantive post,

the judge went on to observe:

“That view seems to have been shared by the Consultants for whom he worked, as appears from the letters referred to in paragraph [29] above, at least to the extent that they believed that the original locum post had been converted into a substantive post. The requirement that the post should be obtained after advertisement and in open competition does not appear to be a condition of the JCHST Fourth Report. Nevertheless, the petitioner in his written statement to the tribunal indicated that he had obtained the locum post at the Royal Marsden Hospital after advertisement and in open competition, and Mr McKinna in his letter of 11 September 2000 to the respondents’ Chief Executive stated that the locum post had been advertised.”

[89]Having concluded that the tribunal’s decision to withdraw accreditation was based upon a conclusion that the Royal Marsden post was a locum post and, had it been known that it was, accreditation would not have been granted, Lord Drummond Young went on to consider whether that was a reasonable basis to act as opposed to considering whether the substance of the training required by the Scheme had been fulfilled. He heard further argument and held that it had been unreasonable not to give proper consideration to the circumstances of the appellant’s individual case.

[90]At paragraphs 23-25 of the Opinion dated 30th March 2005, Lord Drummond Young considered an allegation that the tribunal’s decision should be quashed because there had been a failure to give notice that fraud was in issue. It is unnecessary to recite the reasoning, but the judge concluded that it had not been in issue, although the terms of an averment in the case before him was open to criticism. The judge records the submission of counsel for the respondent on this topic, in these terms: “Counsel for the respondent stated at the outside of his submission that any question of fraud or dishonesty on the part of the petitioner had nothing to do with the decision of the tribunal and was not pled in justification of that decision. If such question arose, it was a matter for the GMC only”.

[91]The Opinions of Lord Drummond Young are of no assistance to this case. The court was not considering the question whether the appellant had made dishonest misrepresentations in his application. The tribunal’s decision had not involved consideration of that issue. This court is concerned with the GMC proceedings where that issue was resolved.

Conclusion on Ground 1

[92]The appellant has from the outset of these proceedings attempted to counter and qualify clear facts stated by him in the record card by mounting a series of arguments to the effect that, despite clear inaccuracies and misstatements on the card, he had nevertheless completed training which met criteria for accreditation laid down by the JCHST. He has demonstrated a high degree of ingenuity and mental agility in shifting the argument to meet the various responses to which his arguments have given rise but, in reality, the statements on the record card are there and speak for themselves. He did not refer to the locum status of his post at the Royal Marsden. He did not refer to the locum status of his posts at the Queen Alexandra and St Helier Hospital. He misstated the periods in which he had acted as locum senior registrar at each of those hospitals. There is overwhelming evidence to support the conclusion that he knew they were locum posts. Had he wished to claim, at the time, as he has subsequently, that, although locum, they were not to be regarded as such or that, retrospectively, any one of them was made “substantive”, it is clear that he spectacularly failed to state that on the record card or in any document qualifying the statements in the card. The essence of the disciplinary case is that his professional duty required candour and full disclosure and in my judgment, as the PCC found, he plainly failed to exercise any, even on his own case.

[93]For the reasons which sufficiently appear from the body of this judgment:(1) he must have known that the “crucial issue” in connection with the Royal Marsden was whether it was substantive or not;

(2) he knew it was not; and

(3) nevertheless he implied that it was. It has not been suggested that there was insufficient evidence to support the conclusion he was dishonest in the respects as found. The decision to grant accreditation was clearly influenced by the contents of the Record card and the dishonest misrepresentations. The PCC were not led into error by their consideration of his entitlement to accreditation. Once it had concluded he had been dishonest the PCC were entitled to regard the actual grant as vitiated by deception and illegitimate. The findings were not against the weight of the evidence, but were in accordance with the evidence and there was no misdirection.

Fair Hearing

[94]The appellant submitted that he had been denied a fair hearing contrary to

Article 6(1) of the Convention

because the Medical Defence Union withdrew their support from him shortly before the hearing and he was required to represent himself. Reliance has been placed on the case of Steel and Morris v UK 26 February 2005.

[95]Steel and Morris does not support such a proportion. That case was wholly exceptional on its facts as the European Court of Human Rights stressed. It involved the longest trial (civil or criminal) in English legal history in which the defendants were required to prove a defence of justification to a libel claim brought against them by Macdonalds. The court distinguished the case from a substantial number of other cases in which it has held that the lack of availability of legal aid was not contrary to Article 6(1) and, in particular, the case of McVicar v UK 7 May 2002. In McVicar there was no breach of Article 6(1) where a defendant in a libel action was required to represent himself in a trial lasting over two weeks before a High Court judge and jury in which he had to examine and cross-examine lay and expert witnesses and in which the burden of proof was upon him (paragraph 51).

[96]As the court held at paragraph 61 of Steel and Morris, the question whether the provision of legal aid is necessary for a fair hearing must be determined on the basis of the particular facts and circumstances of each case. It will depend inter alia on the importance of what is at stake for the applicant in the proceedings, the complexity of the relevant law and procedure and the applicant’s capacity to represent himself.

[97]This is not a case in which Article 6(1) required the provision of legal aid before the PCC, having regard to the following matters: (1) the appellant was facing disciplinary charges under the procedures operated by the PCC which are relatively informal by comparison with the High Court; (b) the burden of proof was on the GMC and not the appellant; (c) the appellant had legal advice and representation until shortly before the hearing; (d) the law was straightforward; the issue was whether the appellant had committed serious professional misconduct and, if so, what penalty could be appropriate. Having read the record, I am satisfied that the appellant conducted his case with skill and tenacity. He never failed to take a point; (e) the issues in the case were issues of fact which were within the appellant’s own knowledge. The most important issue (the misrepresentation of the nature of the Royal Marsden post) was a simple one. There was no need for expert evidence to establish whether the appellant had misrepresented the facts. (f) the appellant, being an educated professional, was capable of representing himself; (g) no specific prejudice to the appellant as a result of not having legal representation has been demonstrated.

REASONS

[98]This case has been unnecessarily unwieldy and intractable for a number of reasons. The allegations of misrepresentation contained in the charges should have identified the respects in which the representations were false. The GMC’s case on the relationship or link between the Record card charges and the Bradford charges should have been made clear at the outset. The extent of the reliance of the contentions made by the appellant as to his entitlement to accreditation should have been identified at an early stage. The failure to be more specific, however, assisted the appellant because he was able to range far and wide in his arguments, but it added unnecessary length to the proceedings. But the problems have been greater for the court for, as the papers show, the “notice” letter to the appellant in respect of the charges, to which he responded with the help of solicitors, made the nature of the case on falsity clear.

[99]There is no obligation on the PCC to give reasons for finding the facts in the charges proved (Gupta v GMC

[2002] 1 WLR 1691

paras 10-14). The narrative form of the charges and the notice to the practitioner informs him or her of the facts in issue in connection with the charges. But whilst the general rule is well established, this case demonstrates that a lack of specificity in the charges and consequently in the reasons can give rise to difficulty. In particular, in this court on appeal. The court has had to travel through the nine lever arch files to see whether unfairness had occurred.

[100]I have concluded that the record demonstrates that the appellant ably conducted his case and was well aware of the case he had to meet. The complexities came not from the GMC’s case which was simple, but his own arguments. The PCC were diligent in seeing that he understood the issues. He had a polite and considerate hearing. He could not be in doubt why the PCC found against him. He has simply refused to accept its clear conclusion because he believes that whatever he did is answered by his firm belief that, in any event, he was entitled to be accredited.

[101]I should like attention to be paid to the desirability for cases such as this for the reasons to reflect a degree of specific consideration of a practitioner’s case, particularly where it has involved great detail. Unless some light is shed on the conclusion reached on the defence case, this court hearing an appeal will be bound to be drawn into much detailed mining of the seams of the record in order to consider the grounds of appeal. In that regard, I have to add that, despite Collins J’s order, the grounds did not adequately reflect the arguments.

[102]I can see no basis for concluding that there has been an error of law or fact in the conclusions reached by the PCC and I have no doubt that an informed participant in the proceedings, like the appellant, cannot be in doubt about the reasons why he was found guilty of misconduct.

[103]The appeal is dismissed.107. ANNEX A RECORD CARD POSITION PLACE OBSERVATION October 1983 1 year Registrar Kent & Canterbury Hospital Confirmed that he held the position of registrar from 1October 1983 to 2 October 1984 October 1984 1 year Registrar St Thomas’s Hospital Confirmed that he held the position of registrar from 3 October 1984 until 5 October 1985 January 1986 18 months Research Fellow/SR Queen Alexandra Hospital See summary below Pension records indicate that during this period Mr Phipps worked as a: Locum Registrar 7 Oct 1985 to 5 Jan 1986 Bro Taf HA Cardiff Registrar 10 Mar 1986 to 19 Mar 1986 South West London Registrar 1 May 1986 to 16 Aug 1986 Portsmouth Research Fellow 17 Sept 1986 to 30 Oct 1987 Portsmouth August 1987 5 months Senior Registrar Queen Alexandra Hospital See summary below January 1988 5 months Senior Registrar St Helier Hospital This period seems to be confused. However, pension records indicate that Mr Phipps worked as a: Registrar 4 Dec 1987 to 16 Dec 1987 South West Reg HA Locum SR 28 Dec 1987 to 1 Jan 1988 Registrar 2 Jan 1988 to 7 Feb 1988 South West London Locum SR 8 Feb 1988 to 12 Feb 1988 Registrar 13 Feb 1988 to 31 Mar 1988 Locum SR 1 April 1988 to 22 April 1988 May 1988 to May 1990 Senior Registrar Royal Marsden Hospital This was a locum SR post throughout

108. MR JUSTICE NEWMAN: For the reasons given in a judgment which I now hand down, this appeal is dismissed. The parties have agreed a form of order, which is that the appeal be dismissed and that there be no order as to costs, save for the costs of the appellant to be assessed and paid by the Legal Services Commission. Thank you.