Aziz, R (on the application of) v General Medical Council [2005] EWHC 2695 (Admin)

Case No CO/2830/05

[2005] EWHC 2695 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Friday, 28th October 2005

Strand

London WC2

B E F O R E:

MR JUSTICE COLLINS

Between

THE QUEEN ON THE APPLICATION OF DR ELIA ERIAN AZIZClaimant

-v-

Between

GENERAL MEDICAL COUNCILDefendant

Computer-Aided Transcript of the Stenograph Notes of

Smith Bernal Wordwave Limited

190 Fleet Street London EC4A 2AG

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(Official Shorthand Writers to the Court)

THE CLAIMANT appeared for CLAIMANT

MISS D ROSE (instructed by Messrs Field Fisher Waterhouse, London, EC3) appeared for DEFENDANT

J U D G M E N T

[1]MR JUSTICE COLLINS: There are two matters before the court. The first is a claim by Dr. Aziz for permission to seek judicial review of various decisions of the GMC. The second is an appeal against the decision of a Fitness to Practise panel reached on 11th March 2005, that Dr. Aziz had been guilty of serious professional misconduct and should as a result be suspended from the register for a period of two months.

[2]The matter has a lengthy history, and I am bound to say that it is a case which has troubled me considerably. On 1st January 1994 Dr. Aziz entered into a 12-month employment contract at the Tullamore Hospital in Ireland. He comes from Egypt. He had in fact obtained employment in December 1993 in Egypt. That was to be overtaken, assuming all had gone well, by the employment in Ireland. Unfortunately, all did not go well. After four or five weeks Dr Aziz was suspended by the Chief Executive Officer of the Midland Health Board, the relevant health board in Ireland. His contract was in due course terminated on 11th March 1994. It was alleged that he had failed to attend on an occasion when it was said that he ought to have attended at whatever hospital it was that he was employed.

[3]Following the failure of the employment in Ireland, Dr Aziz was able to return to his employment in Egypt. He remained in that post until December 1994. In September 1996 he applied for the post of senior registrar in clinical pharmacology at a hospital in Newcastle upon Tyne. In his application form and his CV, he stated that he had been employed between December 1993 and December 1994 as a specialist physician in private practice in Cairo. He did not mention in his application the employment at Tullamore Hospital in early 1994 and of course the fact that he had been dismissed from that post. He obtained the employment in Newcastle.

[4]In the meantime he had been taking proceedings in the Irish courts for judicial review of the decision of the Health Board in Ireland to dismiss him, essentially on the grounds of procedural unfairness. On 29th October 1999 the Irish Supreme Court allowed his claim for judicial review and declared that the decision in question was one which was wrong in law. But it did not give, for obvious reasons, any other relief because the contract had long since expired, it having been for a year between 1st January and 31st December 1994.

[5]In May 2000 an article in the Irish Medical Times mentioned Dr. Aziz's ban and the result. An employee of the Newcastle upon Tyne Trust saw that article, and there was as a result a disciplinary hearing before the Trust in August 2000 which led to Dr. Aziz's dismissal. That dismissal was on the basis that he had not disclosed the Tullamore employment and the result of it, and had therefore not been accurate in the details that he had given to the Trust in obtaining the employment. I am using relatively neutral terms because there is an issue as to whether an intent to deceive was a matter which continued to be alleged. Suffice it to say that at that time, in August 2000, it would appear that the Trust did assert that Dr. Aziz had deliberately misled them and had done so with intent to deceive them. I say that because on 31st August 2000, Professor Hill, the Dean of the University at Newcastle, wrote to the GMC informing them that Dr. Aziz had been dismissed for deliberately failing to declare his employment at the Irish hospital, with the intention of deceiving the appointments' panel. On 11th October 2000 Dr Aziz was informed by the GMC that that complaint had been made. That was the normal letter that a practitioner receives from the GMC, if a complaint is made, informing him that it is open to him to make comments but that he is not obliged to do so at that stage, that it would not be held against him if he did not make any comments, and that a decision would then be reached as to whether the matter should be referred to a fitness to practise panel, (or, as it then was, committee).

[6]Dr. Aziz did not at that stage take any action on that letter and he heard nothing more until April 2004 when a decision was made that the matter should be referred to a Fitness to Practise Committee. Miss Rose has accepted that the GMC's failure to communicate with Dr. Aziz during that period was remiss. The reason why there was that substantial delay was that in March 2001 a case worker in the GMC, Mr Hilton, whose statement was in the evidence before the Panel, stated that because Dr. Aziz was taking proceedings in an employment tribunal to challenge his dismissal by the Newcastle upon Tyne Trust, the GMC should not at that stage take any action in relation to the complaint lodged with them. Mr Hilton explains why he took the action in these terms:

"At the time it was standard practice for senior case workers to put cases on hold when there was outstanding litigation. This is because the outcome of other proceedings may be important to the GMC's consideration of the case. As this was such an established practice the decision to put the case on hold was entirely my own and at no stage did I consult the screener. Had Dr. Aziz not made a claim for unfair dismissal my next step would have been to put the case to a screener to consider referring it to the Preliminary Proceedings Committee."

[7]It seems to me quite plain that that was a wrong decision, in the sense that it was a decision which ought to have been made after consideration whether it really was necessary for there to be a delay until the matter was considered and disposed of by the employment tribunal. Of course, in a sense the same ground was covered in both proceedings, but only in a sense, because Dr. Aziz tells me that, although it was alleged initially in August 2000 that he had intended to deceive, that allegation was not pursued before the employment tribunal. That may be because the Trust took the view that it was not necessary to pursue that particular allegation. It was sufficient that they had been given wrong information, in the sense that they had not been told the full story about Dr. Aziz's past employment. They ought to have been told, since it was clear from the form which he was required to fill in when applying for the post that a full and accurate history should have been given. Dr. Aziz has said that the reason why he did not give the full information was because he had been advised by his Irish counsel in the course of the Irish proceedings that it was not necessary for him to do so. The reason he was given, he said, was that it was doubtful whether the dismissal was lawful, and therefore the question whether that employment was a relevant employment need not be raised. Certainly, there was no suggestion that he had behaved in any way that put in doubt his professional competence in the course of his employment in Ireland.

[8]I have no doubt that if that advice was given by counsel it was bad advice. It was advice that should not have been given. Miss Rose submitted that since the employment tribunal proceedings were launched in 2000, at that stage Dr. Aziz would have been expected to have sought confirmation from the Irish lawyers that he had been given that advice. He tells me that he did not pursue that for the simple reason that the suggestion of intent to deceive had been dropped and he therefore took the view that it was not necessary. Whether that was sensible is a matter which I do not have to decide. But it is of course unfortunate in all the circumstances that he did not then -- then was some four years after the advice had been given -- take steps to obtain confirmation of it.

[9]I am bound to say that he may well have found himself in a difficulty because the lawyer would surely have appreciated that the advice was not good advice and it would not therefore be in his interests to admit that he had given it, even if he had. So Dr. Aziz would, I have no doubt, have been in some difficulty in obtaining it. It was not until he received in 2004 the notification that the matter was to proceed that he did then write to the solicitors in Ireland. He received no reply. He wrote again a year later and again received no reply, which rather suggests that they were not willing to co-operate. Certainly they did not write back as one might have expected, to say, if it were the case, that they could not confirm that Dr. Aziz had been given that advice. They simply ignored the letters.

[10]In any event, in September 2002 Professor Hill wrote to the GMC stating that the unfair dismissal complaint had been dismissed. It seems that the GMC did not receive that letter. Certainly they were not aware that that was the situation, and it was not until March 2003 that the unfair dismissal proceedings were finally brought to an end when the Court of Appeal refused permission to appeal. Still nothing was done because the GMC was not aware of that. It was not until November 2003 that Professor Hill wrote again, and this led to the claim being put before a screener and a decision taken that it should go forward to what is now the Fitness to Practise panel.

[11]On 30th November 2004 Dr. Aziz applied for the cancellation of that decision to refer the matter to the panel, arguing that he was prejudiced by the delay which had occurred since his employment prospects were being adversely affected by the investigation. That was because if he applied for any employment, inquiries would be made and it would be said that there were proceedings against him which had not been disposed of. That would be something which any prospective employer would be concerned about and it did lead to a refusal to employ him. He also made the point that the GMC's standards had changed since 1996 and he was worried about that, and he was concerned that he was unable to prove that he had been given the advice from the Irish lawyers.

[12]The matter came before Stanley Burnton J on 29th November 2004. He refused the application for permission to seek judicial review to quash the decision to refer the complaint. He stated in the course of his judgment his concerns about the delay. He said this in paragraph 22:

"The second ground on which judicial review is sought is that of delay. As I stated during the course of argument to Miss Rose, who appeared for the GMC before him as she appears before me -- I am concerned about the delay in this case. The resulting part of the failure to receive the second letter from Professor Hill until he chased the position in his third letter to which I have referred is that this matter will not go before the PCC until some nine years after the events in question. 23. Dr Aziz complains of a breach of his rights under article 6 and a breach of general obligations of fairness and the possibility of abuse of process because he will be disadvantaged in proving his case, which is that he had no intention of misleading Newcastle and been advised by his Irish lawyers not to disclose his employment in Ireland. He is concerned that standards will be applied to him which did not apply at the time and that he has already suffered significant prejudice as a result of these proceedings hanging over him and being disadvantaged in applying for and obtaining employment. All these are cogent considerations but the question arises whether they are properly made to this court at this time."

What the judge decided was that these were all matters which could and should be raised before the Fitness to Practice Panel when they eventually sat to consider the matter and that it was appropriate that they should reach their conclusions, after hearing evidence and dealing with any disputed matters of fact. He took the view that judicial review was not the right route and there was the alternative remedy available.

[13]By this time Dr. Aziz had got fed up with the way in which the GMC had dealt with the matter and had formed the clear view that he would not and could not get a fair hearing from them. He also took the view that the GMC was institutionally racist and again he was likely to suffer on that account. While I understand his frustration, there is no evidence that the GMC has been motivated by any ill-feeling or ill-will or by prejudice or discrimination against Dr. Aziz on the ground of his colour or race or indeed on any other basis.

[14]Nevertheless, Dr. Aziz quite clearly felt very strongly that he would not get a fair hearing from the GMC. He wrote a letter on 30th November 2004 following the hearing before Stanley Burnton J. In it he said that he had suffered and continued to suffer substantial prejudice. He pointed out that he had been unemployed. He had lost the chance of obtaining at least one post, and he made the point that because of the delay he was unable to prove the advice that he was given. He stated in the last paragraph:

"I already informed the GMC that I would voluntarily remove my name from the GMC's register because I have been asked by my current employer to continue with my current locum consultant position post. If the GMC is agreeable to the cancellation of inquiry, I will respond positively to my current employer's request."

In the meantime he applied for cancellation of the inquiry under rule 19 of the Procedure Rules. Because he had got fed up with the approach of the GMC and because he was getting nowhere in his application that the inquiry should not take place, he decided that he would apply to remove his name from the register and did so on 17th January 2005. The application for cancellation of the inquiry was refused by two members on the Fitness to Practise panel, and in fact Dr. Aziz was given wrong information as to the identity of those who had made that decision on 18th January 2005. His application to be removed from the register was also refused by two members of the FPP. Notification of that was given on 1st February. Both those decisions by the GMC were, it is now recognized, procedurally improper, in the sense that they were made by the wrong people. For that reason -- I will come to this in the course of the history in a moment -- the decision was made that the panel should not have sat to hear the complaint.

[15]On 4th February the notice of inquiry setting out the charges was issued. They included the allegation that there was an intent to deceive. On 8th March Dr. Aziz made a further application for judicial review, seeking an injunction to prevent the hearing going ahead. That was refused by Richards J. On 10th and 11th March the hearing took place but in the absence of Dr. Aziz, and he was not represented. As I said, the decision reached was that he was guilty of serious professional misconduct, that all the heads of charge were proved, including the intent to deceive, and that he should be suspended for a period of two months. He challenges that.

[16]Very shortly after the decision the GMC appreciated that there were the procedural improprieties to which I have referred, in that the applications had been decided by persons who had no jurisdiction under the rules to decide them. Accordingly, the GMC accepted that the decision could not stand and that Dr. Aziz's appeal would have to be allowed. They suggested a consent order to that effect but that the matter should then be remitted by the court to the GMC for the proper steps to be taken, for decisions to be made by the proper people, and if the decisions were unfavourable to Dr. Aziz for the matter to be reheard by a different panel. That Dr. Aziz challenges.

[17]His claim before me is that it would be wrong for the matter to go back, that this ought to be the end of the proceedings and that he should not be retried. He tells me that he would wish to withdraw his application to be removed from the register if the disciplinary proceedings are disposed of because he still wishes, if possible, to practise medicine in this country. Of course he cannot do that unless he is on the medical register.

[18]He has put his claim on three grounds. First, he submits that the panel was in error in finding that it was proportionate to continue the proceedings. Secondly, he submits that there was an unreasonable delay and therefore it would be an abuse of the process and contrary to

article 6 of the European Convention on Human Rights

for any further hearing to take place. Thirdly, he submits that there was an error of law in finding that he was guilty of serious professional misconduct, itself no doubt based largely upon the finding that there had been an intention to deceive.

[19]I deal with the last point first. As Dr. Aziz recognizes, I can only prevent the matter going ahead on that ground if I were persuaded that no panel could reasonably reach the conclusion on the material that he had intended to deceive and that he had done what he did deliberately. It seems to me that it is impossible for me to reach that conclusion. The fact is that, for whatever reason, he did mislead the Newcastle upon Tyne Trust as to his past history and his CV. He did it deliberately, in the sense that he knew what he was doing and that he must have known that to say that he was employed throughout January 1994 in Egypt was wrong. That is what was conveyed by the information that he gave. When I use the word wrong, I meant that it was inaccurate. It seems to me that in those circumstances any panel would want to consider carefully the explanation given and might want to consider how Dr. Aziz stood up to cross-examination in giving evidence, if he chose to do so, about the advice that he had been given and what his intentions were. It is quite clear to me that a panel would be entitled to conclude that he had done it deliberately with the intent to deceive. In those circumstances, I cannot accept that no reasonable panel could reach that conclusion.

[20]It seems to me that grounds 1 and 2 merge into each other. The key point here is whether it would be right for this matter to go back to be reconsidered on the basis that there has been such a delay since the claim was made. The relevant period of delay is delay since the complaint was made to the GMC. Delay between the time when the alleged offence was committed and the complaint being made is not directly material when one is considering whether there has been an abuse of the process by reason of delay. It is of course relevant, because the longer the time that has elapsed since the matter on which the complaint is based happened, the more important it is that the complaint is dealt with as speedily as possible. That seems to me to be self-evident. There is in fact a time limit of five years in any event between the date when the matter, the subject of the complaint, took place, and the making of the complaint. If the complaint is made after five years it will not normally go ahead. Obviously if it comes at the end of the five year period, that is a relevant consideration.

[21]The decision of Mr Hilton I have already referred to. That was in my judgment a decision which was itself erroneous, in the sense that it did not take account of the circumstances of the case. Consideration should clearly have been given as to whether it was indeed appropriate to await the outcome of the employment tribunal proceedings. I am clearly of the view that a reasonable decision in the circumstances would have been that it was not appropriate to delay. That does not of itself mean that it was unreasonable to take the contrary view, but it was a view which needed some justification. No such justification has been advanced save that it was the general practice at the time. That is not a proper justification.

[22]It is necessary to see how the panel dealt with this. They were referred to the relevant decision of the Privy Council on delay, Haikel v GMC Appeal No 69 of 2001. That was a case which involved different and possibly more serious allegations of inappropriate vaginal examinations of female patients. It was not alleged that they amounted to indecent assaults but that was clearly the area, because it was said that the examinations were unprofessional, unnecessary and inappropriate. The relevant delay in that case was in the order of some two years. The Privy Council mentioned a decision of the Preliminary Proceedings Committee in Rogers v GMC. That is a case which has been put before me by Dr. Aziz. That was a delay of some two years and 10-months. The report does not indicate the nature of the allegations which had been made against Dr. Rogers. The committee in that case took into account the effect on Dr. Rogers of the suspension by his employers, which had continued pending the outcome of the issues before the GMC. That clearly had been a prejudice to him. The committee concluded by saying that they had to balance their duty to protect patients, the interests of the public and the interests of the doctor. They continued:

"In doing so, they considered all the circumstances of the case, submissions of counsel, the allegations contained in the charges and the findings of the tribunal. On balance the committee considered it would be disproportionate to continue with the proceedings."

In Haikel the Privy Council made the point that the main thrust of any argument on delay in the context of article 6 and fairness was whether the proceedings themselves could be fairly conducted. The most important concern was whether any evidence which otherwise might have been available would be made less available or adversely affected by reason of the delay. The length of time was also something which was material in that regard.

[23]At paragraph 14 of the Privy Council's decision this is said:

"Their Lordships consider that an explanation for this lapse of time might have been illuminating and helpful to the PCC. However in the absence of an explanation it was still open to the committee to determine whether or not the delay was such as to amount to an abuse of process. There was no evidence or suggestion by the appellant that he had suffered any material prejudice in addition to the lapse of time. There was no complaint that witnesses were no longer available who would have been but for the delay. The records of the patients were available and full and even of Ms A were eventually produced, albeit incomplete. In the absence of any such assertions it was open to the Committee to reach the decision it did and to proceed to hear the complaints. Their Lordships have not been persuaded that on the facts of this case it can be said that the reasonable time requirement has been violated. To stay proceedings on the ground of abuse of process is a rare step only to be taken in exceptional cases. There was undoubtedly an important countervailing public interest that allegations of such a serious nature should be heard and determined rather than stayed."

It is to be noted that the Privy Council did not suggest that prejudice, resulting from the inability to find employment and so on, was an irrelevant factor in deciding whether a case should proceed. But they made the point that if there was no prejudice beyond that and there was not likely to be any adverse effect in relation to the evidence at the hearing, then it was in that case open to the committee to decide that the matter should go ahead. The Privy Council does not suggest that the contrary decision, if it had been made, would have been one that was impossible for the committee to have taken. It is a question of balancing the importance of ensuring that a case involving alleged dishonesty by a medical practitioner is heard and determined, as against the interests of the doctor himself in being able, after a reasonable time, to know his fate, and indeed to dispose of the proceedings if he was able to persuade the committee that the case against him was not proved.

[24]The panel made the point in this case, in deciding why they had reached the conclusion that serious professional misconduct was established, that medical appointments were made on the basis that registered practitioners should be completely honest in their applications. They went on:

"Public confidence in the profession requires that this principle is upheld. The panel has seen documents prepared by and on behalf of Dr Aziz which submit that the standards required of registered practitioners have changed over the years and this is correct. However, the basic concepts that doctors must be honest and trustworthy and must not sign documents they believe to be false or misleading were clearly set out in the Council's publication 'Good Medical Practice' which was current at the time of Dr Aziz's deception. In the light of the clear breaches of the Council's guidance, and in particular the finding of an intention to deceive, the panel considers that Dr Aziz's conduct fell well below the standard expected of a medical practitioner in 1996 and therefore finds him guilty of serious professional misconduct."

The question of intention to deceive was what essentially was at issue and is what Dr. Aziz would have wished to pursue with the assistance of the evidence from Ireland. In deciding on delay the panel said this:

"The panel find that the decision to suspend action temporarily in line with the GMC's policy at that time was reasonable. The panel has concluded that there has been no unreasonable delay such as would give rise to a breach of Dr. Aziz's right to a fair hearing under article 6 of the ECHR."

That fails to consider whether the decision to suspend was in all the circumstances reasonable. Merely to follow a blanket policy is and was not reasonable. The panel ought itself to have considered whether in all the circumstances that was a reasonable course to adopt. It seems to me that had they considered that fully they would have reached the conclusion that it was not. It is right to say that the matter was raised in the course of the hearing, and one of the panel members, Dr. Markovitch, expressed concern as to whether indeed it was right to have suspended the proceedings. Dr. Marcovitch said this:

"The original complaint to the General Medical Council in 2000 had regard to the alleged fraudulent CV or inaccurate CV, which can presumably be determined on the basis of the facts. Surely the Employment Tribunal was about other things. It would have looked at whether the hospital's procedures were correct and whether their decision was disproportionate and all sorts of things. Mr Stern (counsel for the GMC): I am sure that is right. Dr Marcovitch: I am a little concerned that the General Medical Council in closing the case at that point, I do not quite understand the need to do so given that the facts on which the complaint was made would stand on their own. Can you help me with that? Mr Stern: I am not in a position to help you because obviously you would need to hear from Paul Hylton or someone within the General Medical Council."

He then referred to Mr Hylton's evidence. The chairman then interposed, saying this:

"Perhaps I could offer some information of that because I was a medical screener for some years. The need to have closure, as happened here, verses a screening decision arose because if a case was screened and screened out, it could not be re-opened unless there was a new complaint. So the hazard was that a screener might be given the case with some other critical piece of information as yet unsettled, and therefore this technicality, which might appear obscure to the casual reader, was explained that way. Whether that is correct or not is a separate matter."

I am not sure that that really did illuminate the position at all. I am quite clear that the panel failed to have regard to a material consideration in that regard and to assess for itself whether indeed the decision was a reasonable one. The panel went on:

"Dr. Aziz has suggested that the passage of time means he is unable to obtain evidence of the legal advice which he says led him to omit all mention of the Tullamore post in his subsequent job applications. The panel has seen no evidence of any effort by Dr Aziz to obtain this information. It does not appear to be his case that such evidence was available in 2000 but has since ceased to be available. Therefore any delay by the GMC would appear not to have contributed to the non-availability of this evidence. In these circumstances, the panel does not find that there has been any significant procedural delay which might amount to an abuse of process which would put in question the ability of Dr Aziz to obtain a fair hearing."

That fails to have regard, on the face of it, to the prejudice suffered by Dr. Aziz in his failure to obtain appointments while the matter was under consideration by the GMC. That was a factor which ought to have been taken into account. What weight would have been attached to it is another matter. Certainly, it is of lesser weight than considerations as to whether a fair hearing had taken place.

[25]Secondly, the panel indicated that they had received no evidence of any effort by Dr Aziz to obtain the information. In fact, Mr Aziz had written a letter on 22nd February to the GMC in which he set out his concerns about delay and the other matters which were troubling him. He referred specifically to his claim that he relied on the legal advice given to him not to declare the Tullamore job pending the outcome of the Irish Supreme Court hearing. He said that a copy of the letter from him to the solicitors was available on request. Clearly it would have been more sensible for him to have sent a copy of that letter but he had referred to it. He ought to have been advised that he should send a copy of it and, at the very least, his assertion that there was such a copy should have been drawn to the attention of the panel. To say that the panel had seen no evidence of any effort by Dr Aziz to obtain this information may have been correct, but some information should have been put to the panel in that regard. Whether it would have made any difference is another matter because clearly no effort was made before 2004. Miss Rose has criticised that on the basis that it should have been obtained for the employment tribunal hearing. Miss Rose has submitted that this was a serious matter and has made the point that the inaccuracy extended beyond merely not referring to the Irish employment but to asserting that he was employed over the relevant time in Egypt. That does not seem to me to be quite so serious as Miss Rose would suggest, because it was the shortness of the period which was straddled by the Egyptian employment that was material. That was, says Dr Aziz, the advice that he was given, namely not to mention the Tullamore employment. That would mean that the employment in Egypt was, so far as he was concerned, as he suggested, the only relevant one. I have no doubt that Dr. Aziz was wrong and that the advice that he was given was wrong. I hope that, certainly with hindsight, he will appreciate that that advice was wrong, that he should have disclosed any material, and that it would look, at the very least, bad from the point of view of the recipient that the information had not been given. It is of the greatest importance to the medical profession that practitioners are honest, truthful and can be relied on in all respects by their patients. That is the serious aspect of this allegation. That is why, submits Miss Rose, I should not take the view that I should effectively stop the matter proceeding. That should be a matter for the committee to consider, having heard all relevant submissions and any relevant evidence on the matter. Dr. Aziz says that enough is enough. A year ago Stanley Burnton J was concerned about the delay. We are now a year on and the matter is still not disposed of. It seems to me that for the GMC to take some five years to reach a stage when the matter is to be heard is prima facie entirely unreasonable. The explanation is not helped by the delay of a year when the letter from Professor Hill was said not to have been received and his chasing letter in November 2003. It has equally not been helped by the mistakes made by the GMC in putting the decisions to the wrong people, so that they had to accept that the hearing on the 10th and 11th March had to be quashed. Miss Rose submits that that should not of itself have led to an extra delay of more than a couple of months. But, as it seems to me, Dr. Aziz, for wholly understandable reasons, has taken the view that he should not be retried and that he should pursue this application. It is now unlikely, if the matter goes back, assuming that the decisions on these applications are against him, that the matter could be heard before the early part of next year at the very soonest. By then we will be 10 years after the events in question and some five and a half years after the complaint was originally made. It seems to me that in the circumstances that delay is altogether too long and that, despite the importance of the proceedings, it would be wholly unfair and wrong and disproportionate for the matter to proceed any further. This was, it is accepted, a one-off lapse by Dr. Aziz. It is not suggested that he has otherwise in any way shown incompetence as a medical practitioner, and there is no suggestion -- there was no suggestion before the panel -- that he would in the future be a risk to patients. I am quite sure that he has learned his lesson. There is no reasonable chance that he will ever fail to give full and proper disclosure of all information and act in a way which is not at all misleading. He must realise that he did to a considerable extent bring the problems upon himself, whatever may have been the advice he was given.

[26]I am entirely satisfied in all the circumstances that the time has come to draw an end to the proceedings and that it would be unfair and an abuse for the matter to proceed. I appreciate that it is a strong step to take. I appreciate that the protection of the profession is something which the GMC is very concerned to maintain and that they, through their Fitness to Practise panels, have expertise in that field. Nonetheless, ultimately there is an appeal to this court, and I have to do what I consider to be right and just in all the circumstances in the individual case.

[27]For the reasons I have given, I am satisfied that it is right and just that these proceedings should not continue. Thus I propose to allow the appeal and simply to quash the decision of the Fitness to Practise Panel. I will not remit the matter for further reconsideration. So far as the application for judicial review is concerned that is now unnecessary. I shall refuse permission.

[28]DR AZIZ: May I ask for costs?

[29]MR JUSTICE COLLINS: You may. Have you made a list?

[30]DR AZIZ: Not yet.

[31]MR JUSTICE COLLINS: There are serious limitations upon the amount of costs you can claim. I cannot remember what the amount for an hour is but it is low. Assuming you should have costs, what you have to do is to set out a schedule indicating what your costs are and submit it to the GMC.

[32]MISS ROSE: We do not resist that.

[33]MR JUSTICE COLLINS: The sensible thing is for me to say that if they cannot be agreed, you can come to me and I can consider it on paper on a summary assessment, or you can go to a detailed assessment. Which would you prefer?

[34]MISS ROSE: We would prefer a summary assessment.

[35]MR JUSTICE COLLINS: You put in writing what you are claiming. Put it to the GMC. They will say whether they agree it or not. If they do not agree you will discuss it and try to reach a compromise. If you cannot, then it will come back to me with written submissions on both sides and I will decide.

[36]MISS ROSE: There is the question of permission to appeal. I believe I have to ask the Court of Appeal for that. I believe this constitutes a second tier appeal.

[37]MR JUSTICE COLLINS: You may be right. You would not get leave. It depends on its own facts.

[38]MISS ROSE: The submission would have been that it is a question of principle about the error of judgment for the fitness to practise panel.

[39]MR JUSTICE COLLINS: No. I would not have granted leave to appeal. You may be right. Has this been decided yet?

[40]MISS ROSE: I looked the point up. That was the conclusion I came to that, because it was an appeal to the High Court, it was exercising a statutory appellate jurisdiction.

[41]MR JUSTICE COLLINS: You are right. Sometime somebody is going to have to make a decision in principle on that. I am not sure that it makes a great deal of difference. If I was persuaded that this was a case where I would have granted leave to appeal, I would say that I would have granted leave to appeal for whatever reason, and I would have hoped in those circumstances that you should not have much difficulty in the Court of Appeal. We have to fill in a form saying whether we grant leave to appeal or not and why. I tend to do it: see transcript. If leave is needed it is refused: see transcript.