Al-Khayat, R (on the application of) v General Medical Council [2005] EWHC 2917 (Admin)

Case No CO/7382/2005[2005] EWHC 2917 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 16th November 2005
Strand
London WC2
B E F O R E:
MR JUSTICE MCCOMBE
Between
THE QUEEN ON THE APPLICATION OF AL-KHAYATClaimant-v-
Between
THE GENERAL MEDICAL COUNCILDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR A KENNEDY (instructed by Radcliffes Le Brasseur) appeared for CLAIMANTMISS D ROSE (instructed by GMC) appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE MCCOMBE: I have before me an appeal by Dr Mahmoud Al-Khayat against a decision of the Fitness to Practice Panel of the General Medical Council made after a hearing held between 15th and 18th August of this year at which the appellant was found guilty of serious professional misconduct.[2]At the appeal, the question that arose was as to the treatment of a patient, a Mr L, between February and September of 2002. The patient had consulted the appellant doctor on various occasions during that eight month period, complaining of sore throats, a lump on his neck, and certain other symptoms which included headaches. The Panel found that there had been failings in the treatment of the patient, including repeated failures to examine him or adequately to assess his condition, and failures to refer on to other specialist opinions. There were also findings of failures to make adequate records of the attendances by the patient at the surgery. The appellant diagnosed Mr L as suffering from throat infections and prescribed antibiotics. In the end, he was referred to a hospital when a nurse had noticed a more serious condition which concerned her. The appellant did then refer Mr L for specialist attention.[3]The Panel found that the appellant had been guilty of serious professional misconduct, in a fashion to which I shall return, and ordered that he should be suspended for a period of 12 months. The factual findings underlying the Panel's decision were the subject of serious challenge at the hearing in August and there were issues as to the nature of the events that occurred at the consultations given by the appellant to the patient. It was not a case in which the facts were not in issue but simply questions of seriousness or penalty or the like. It was a full blown hearing on the facts.[4]The appeal now brought is not against the findings of fact or against the findings of serious professional misconduct, but concerns the sanction of 12 months suspension that was imposed. It is submitted by Mr Kennedy, who appears for the appellant, that the Panel was wrong in imposing such a penalty and should instead have imposed the alternative penalty of the imposition of conditions on his continued registration, pending suitable re-education or training.[5]There is not a great deal of difference between the parties as to the appropriate legal principles to apply in this case. I have been referred to a series of decisions, both of the Privy Council and of the decision in this court since the procedures have changed. It suffices simply to refer to two passages: one from a decision in the case of Ghosh v General Medical Council [2001] 1 WLR 1915, cited by Collins J in the case of R (on the application of Dr Bevan) v General Medical Council, 4th February 2005, reference CO/5377/2004, neutral citation [2005] EWHC 174 Admin. I quote Collins J as follows: "I must emphasise that it does not mean that erasure would necessarily have been appealable . . . It seems to me that the test that I should apply is that set out by Lord Millett in Ghosh v General Medical Council [2001] 1 WLR 1915 at page 1923. Having referred to Evans . . . Lord Millett said this: 'For these reasons the Board will accord an appropriate measure of respect to the judgment of the Committee whether the practitioner's failings amount to serious professional misconduct and on the measures necessary to maintain professional standards and provide adequate protection to the public. But the Board will not defer to the Committee's judgment more than is warranted in the circumstances. The Council conceded, and their Lordships accept, that it is open to them to consider all the matters raised by Dr Ghosh in her appeal to decide whether the sanction of erasure was appropriate and necessary in the public interest or was excessive and disproportionate and in the latter event I were to substitute some other penalty or to remit the case to the Committee for reconsideration.'[6]I would next refer to the decision in Ghosh [2001] UKPC 29 or, alternatively, [2001] 1 WLR 1915 where, in the opinion of the Board, Lord Millett quotes from Evans in the following terms:
"The principles upon which this Board acts in reviewing sentences passed by the Professional Conduct Committee are well settled. It has been said time and again that a Disciplinary Committee are the best possible Board for weighing the seriousness of professional misconduct and the Board will be very slow to interfere with the exercise of the discretion of such a Committee. The Committee are familiar with the whole gradation of seriousness of the cases of the various types which come before them and are peculiarly well qualified to say at what point on that gradation erasure becomes the appropriate sentence. This Board does not have the advantage, nor can it have the same capacity, for judging what measures are from time to time required for the purpose of maintaining professional standards."
That ends the quote from Evans but Lord Millett continued in Ghosh, as follows:
"For these reasons, the Board will accord an appropriate measure of respect to the judgment of the Committee whether the practitioner's failings amount to serious professional misconduct and on the measures necessary to maintain professional standards and provide adequate protection to the public."
[7]I will just recite certain findings of the Panel. Having reviewed the evidence, the Panel found, first:
"The Panel has found that your behaviour in relation to this patient was irresponsible, unprofessional and not in the best interests of the patient."
The Panel went on to say:
"These multiple failings on a number of occasions gave the Panel no doubt that you are guilty of serious professional misconduct."
That was in reference to the various consultations that the appellant had with this patient, and although the case only involved one patient it was clear that the Panel had a view that the errors were repeated.[8]That is also clear when the Panel came on to consider the question of penalty. It referred to the deficiencies that it found in the following terms:
"Repeated fundamental failings."
A further quote:
"Given the widespread breach of essential principles of good clinical care . . . "
There then follows a passage which Mr Kennedy for the appellant criticises in the following terms:
"It is of the view [that is the Panel is] that the findings in your case demonstrate your professional performance is seriously deficient and you currently pose a risk of harm to patients. There is, however, evidence that you have now acquired some insight to your deficiencies and you have a potential to be rehabilitated. The evidence from testimonies from professional colleagues demonstrates that your clinical practice has improved."
It then went on to impose the 12 month suspension penalty to which I have referred.[9]On the present appeal, Mr Kennedy for the appellant submits, in relation to that passage, that the Panel was using the expression "seriously deficient" in relation to the professional performance of the appellant as a term of art, which was one that was only open to them to use if in fact such a conclusion was warranted by the findings of a GMC performance assessment, to which they referred a little later on in their decision as being one of the conditions that would be necessary to be fulfilled before a resumption of practice after suspension. I do not accept that submission. It seems to me that the Panel was using the words in the ordinary sense of the English language, having regard to the earlier passages that I have already quoted from its decision.[10]Mr Kennedy submits that it is important that the sanction should be proportionate and that the purposes of the Tribunal, given its findings, would have been adequately reflected by a period of conditional registration with the appellant doctor being left to complete the re-education requirements while he remained in ordinary practice. He submits that it was excessive to impose a period of suspension in those circumstances. I cannot accept that submission. It seems entirely clear that the Panel was of the view that this appellant presented a danger to patients in the circumstances revealed by the facts that they had found. In the passage from which I have already quoted, the Panel said this:
"It [that is the Panel] went on to consider whether the imposition of conditions would be appropriate. The Panel concluded that in the circumstances of this case conditions would not be appropriate given the widespread breach of essential principles of good clinical care as outlined in good medical practice and the need to protect patients."
In the passage in which serious deficiency of performance is pointed out, the Panel also referred to a current risk of harm to patients.[11]In the light of those findings, it seems to me that it was hardly open to the Panel to consider that any other sanction than suspension was appropriate. It was clear that it thought that the present appellant should not be free to treat or attend upon patients while that deficiency was manifest. In my view, it could take no other option but to order a period of suspension of some type. I am fortified in that conclusion, not holding Mr Kennedy in any way to the any submissions he made below, but it was not urged upon the Panel when they considered the question of penalty that suspension was inappropriate. On the contrary, Mr Kennedy submitted that suspension was an appropriate alternative to erasure. It was quite clear from the phraseology of the Panel's decision that it was seriously considering erasure because of what it considered to be a case of very serious misconduct.[12]For those reasons, the arguments against the imposition of suspension fail. It then remains to consider whether the period imposed was too long. Mr Kennedy submits that no penalty of suspension should be so imposed as to prevent a doctor continuing to maintain his basic skills, and that a period imposed of this nature runs the serious risk of "de-skilling" this particular doctor. Against that, Miss Rose for the Council submits that there was no evidence, either before the Panel or before this court, as to the period that would be required for the appellant to complete the appropriate programme of retraining that the Panel thought was sufficient other than that which the Panel itself assessed. I consider Miss Rose's submission to be well-founded. As in the case of assessment of the nature of the penalty, this was a case in which they had to consider using their best professional experience and judgment, including expert evidence that they heard, to decide what the danger was, and secondly, how the danger could be remedied. It did precisely that. I can find no fault in the decision that it made, either on the nature of the penalty imposed or on its length. For those reasons, this appeal must be dismissed.[13]MISS ROSE: My Lord, we apply for our costs.[14]MR JUSTICE MCCOMBE: Yes. Mr Kennedy, you cannot resist that, can you?[15]MR KENNEDY: No, my Lord.[16]MISS ROSE: There is a summary assessment.

MR JUSTICE MCCOMBE: Yes, I glanced at that this morning.

[18]MISS ROSE: Your Lordship will notice that there is a similarity between the assessments for the appellant and those for the GMC.

MR JUSTICE MCCOMBE: I have only seen the GMC's.

[20]MISS ROSE: There is an assessment of costs for the appellant which is just over £7,000. The GMC's costs are slightly below those of the appellant.

MR JUSTICE MCCOMBE: I had better hear what Mr Kennedy has to say.

[22]MR KENNEDY: I cannot say against that.[23]MR JUSTICE MCCOMBE: Thank you very much, Mr Kennedy. Accordingly, this appeal will be dismissed with costs which I assess in the sum specified in the Council's schedule, namely £6,231.20. Thank you.[24]MISS ROSE: I am grateful.

MR JUSTICE MCCOMBE: Thank you both for your careful submissions.