Shanker, R (on the application of) v General Medical Council [2005] EWHC 97 (Admin)

Case No CO/4151/2004[2005] EWHC 97 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 20 January 2005
Strand
London WC2
B E F O R E:
MR JUSTICE BENNETT
Between
THE QUEEN ON THE APPLICATION OF KAILASH SHANKERClaimant-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 J HARRIS appeared for CLAIMANTMR G CLARKE appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE BENNETT: Dr Shanker appeals from the decision of the Committee on Professional Performance (to which I will refer as "the CPP") of the General Medical Council, given on 23rd July 2004, that his medical registration be suspended indefinitely pursuant to section 36A(4) of the Medical Act 1983.[2]The brief factual background is this. In 1976 the appellant came to this country from India, where he had qualified as a doctor in 1973. Between 1980 and 1996 he was in sole practice in Grimsby. In 1997 he moved to Eston in Cleveland and practised there until June 1998. In June 1998 his performance first came to the notice of the GMC. In July 2000 the GMC's medical screener referred the appellant for a performance assessment, which took place in April 2001. His performance was assessed as being seriously deficient. The assessors recommended that he should not work unsupervised.[3]In August 2001 the Interim Orders Committee of the GMC imposed conditions on the appellant's registration, namely requiring him to work in supervised NHS training posts. In September 2001, his case was referred to the CPP. In November 2001 the CPP heard the case and found the appellant's performance to be seriously deficient. It directed that the appellant's medical registration be suspended for nine months. In August 2002 the case was resumed before the CPP. It suspended the appellant's registration for another 12 months.[4]In August 2003 the CPP imposed a further period of suspension of six months and directed a further assessment of the appellant's performance. The appellant appealed that decision unsuccessfully, both to this court and the Court of Appeal. In May 2004 the appellant's performance was reassessed. He scored only 50 per cent in the general practice knowledge test; 19.6 per cent in the simulated surgery test; and 48 per cent in the observed structural clinical exams ("OSCE"). The required standards are 69 per cent, 50 per cent and 70 per cent respectively. The assessment panel found the appellant to be deficient in knowledge and consulting and clinical skills, found that he lacked insight into his difficulties, and considered that retraining was unlikely to succeed.[5]On 22th and 23th July 2004 the CPP heard and determined the matter. The appellant was represented by counsel and solicitors. Dr Malcolm Campbell, a GMC performance assessor, the appellant and Dr Geoffrey Norris, the appellant's mentor, gave evidence. Counsel for the appellant made her submissions. The specialist adviser and the legal assessor gave their advice to the CPP in the presence of the parties. No questions were addressed by the parties to the specialist adviser; nor were comments made upon the advice of the legal assessor. The CPP considered the matter in the absence of the parties.[6]The parties were later readmitted. During the course of his remarks to the appellant in giving the CPP's determination, the chairman said:
"The Committee have heard that you have taken some action to address the serious deficiencies in your performance. You have attended a number of didactic courses and read widely, made notes on book chapters and journal articles, and taken place in role-play consultations and video analysis with your mentor, Dr Norris. They would like to voice their appreciation for the exceptional efforts made by Dr Norris in assisting you. "
However, despite the evidence that you followed all your mentor's suggestions, the Committee are greatly concerned by the conclusion of the assessment panel that your knowledge base remains inadequate to function safely as a general practitioner and that your consulting and clinical skills remain poor. Despite intensive mentorship and your own efforts at redressing your deficiencies, the Committee note that your score in the general practice knowledge test was unchanged. Your scores in the simulated surgery and objective structured clinical examinations had deteriorated. While the Committee made allowance for the fact that you had not been in clinical practice for two years at the time of the assessment, your scores in all areas remained far below the minimum expected of a registered medical practitioner. "The Committee, having heard your evidence, concur with the panel's view that you still do not understand your serious and wide-ranging deficiencies and that retraining would be unlikely to succeed. "Your evidence to the Committee yesterday was that you accepted the findings of the assessment panel in May 2004 that your performance was seriously deficient. Nonetheless, the Committee are concerned by your assertions to the assessment panel at the final interview that you felt you could go back to group practice as a principal, that you were confident you could work as a GP tomorrow, and that all aspects of your practice were strong. These inconsistencies serve to illustrate your continuing lack of understanding as to your limitations. "The Committee heard evidence of your previous conviction in 1994 of dishonesty, now spent, your admission at the August 2003 CPP hearing that you lied under oath at the November 2001 CPP hearing, and your subsequent conviction in January 2004 (currently under appeal) for obtaining a pecuniary advantage by deception. As advised by the Legal Assessor, the Committee considered these matters only in the context of how they reflect on your character, credibility and honesty. They have not taken those matters into account when reflecting on the standard of your professional performance. "The Committee have determined that it is not sufficient for the protection of the public to place conditions on your registration. The Committee note that you have been suspended from the Medical Register for over two years. They consider that you are unlikely to improve your seriously deficient performance to the required standard and direct that your registration be suspended indefinitely under section 36A(4) of the Medical Act 1983, as amended. "In reaching this decision, the Committee are satisfied that they have weighed your own interests against the safety of the public and the public interest and that this direction is proportionate to the deficiencies identified that are likely to affect future performance."[7]As the chairman told the appellant, the decision means that the suspension of his registration will remain in force and will not be reviewed by the CPP unless the appellant asks for a review. He is not entitled to ask for a review until two years have elapsed from the date on which the indefinite suspension took effect.[8]I should now sketch in more of the history. The assessment in April 2001 was similar to that in May 2004. Dr Campbell took part in both assessments. The results of the knowledge test was that the appellant scored 52.5 per cent against the minimum standard of 68 per cent. As Dr Campbell explained in evidence (see the transcript page 18A), the knowledge test was not purely a test of recall. The knowledge test is about decision-making in terms of diagnosis, treatment, et cetera. In the simulated surgery test in 2001 the appellant was given ten "patients", and the way he dealt with them observed. His score was 30.5 per cent, as against the minimum standard of 50 per cent. The results of the OSCE was that the appellant scored 60 per cent as against the minimum standard of 70 per cent.[9]In the summary of the report in 2001, the assessors wrote:
"We consider that Dr Shanker's performance has been seriously deficient in the areas of clinical care, record keeping, relationships with colleagues, working within the laws and regulations and paying due regard to efficacy and use of resources. We consider that Dr Shanker's knowledge base is very low and that his clinical skills are inadequate. "
We acknowledge that our assessment was necessarily limited in that he had last worked as a GP principal some time ago and therefore the performance we were assessing in this context was not recent and had been of relatively short duration. "Furthermore, our assessment of his more recent work as a locum was limited by the nature of locum work and by the fact that there were no clinical colleagues in that practice to comment on his performance ... "For these reasons the Phase 2 assessments take on more significance than would normally be the case. Dr Shanker displayed no insight into his deficiencies. This could be a major problem in any retraining attempt. However, this would be better assessed in a supportive training environment. Such an environment would also enable an assessment of his willingness and potential for change."[10]Under the heading "Panel's formal opinion" the report read as follows:
"For the reasons given above, our opinion is that: a) The standard of the practitioner's professional performance has been seriously deficient. b) The standard of the practitioner's professional performance will not improve while he continues to work as an unsupervised locum. We have serious doubts as to the effectiveness of remedial training. c) The practitioner should cease unsupervised professional practice. We do not believe we have sufficient evidence to state if Dr Shanker's performance would be improved sufficiently by retraining or what form such retraining might take."
[11]They then go on to make their recommendation.[12]In April 2002 the GMC received a letter from a medical centre in Plumstead, East London, indicating that the appellant had been working there from July 2001 to March 2002. The appellant had not apparently informed the medical centre of the proceedings before the GMC or of his suspension. In short, it appeared that the appellant had been working while suspended. The police were informed.[13]At the resumed hearing in August 2002 Dr Norris, who was assisting the appellant, gave evidence. During his evidence he said he thought the appellant's insight was minimal and that the comment by the appellant that he was really just like any other average GP was not a comment with which Dr Norris could agree. The CPP expressed deep concern that the appellant had continued to practise whilst suspended. Further, the appellant admitted to the CPP that in the hearing in November 2001 he had lied when he told it that he was not working. He was given a further 12 months' suspension within which to remedy the defects.[14]In January 2004 the appellant was convicted of obtaining pecuniary advantage by deception, based on him working whilst suspended in Plumstead. In May 2004 Dr Campbell, Ms Lockhart, a lay assessor, and Dr Donaghy, a medical assessor, carried out a further assessment. It is to be found at section E of the bundle. I have read it.[15]During Dr Campbell's evidence in July 2004 in front of the CPP, counsel for the appellant intervened in the examination-in-chief of Dr Campbell by counsel for the GMC, to the effect that the appellant did not challenge any of the findings of the assessors. (See page 23C to D of the transcript.) Dr Campbell was nevertheless taken through the whole of the report by counsel for the GMC, no doubt so as to ensure that the lay members of the CPP understood it fully. The report set out the results of the knowledge, simulated surgery and OSCE. For a full understanding, I should say that simulated surgery involves the doctor consulting with a series of role-players who are trained to portray a scenario based on real situations of patients commonly encountered in general practice (see page 7 of the report). The comments made by the assessors on the appellant are to be found between pages 12 and 15 of the report. Further examples are given at pages 17 to 19 inclusive. The format of the report in respect of OSCE is similar to that on the simulated surgery (see pages 26 to 29).[16]The assessors' conclusions were as follows. First, as to general knowledge:
"Dr Shanker's score in the knowledge test was well below the pre-determined acceptable score and also well below the volunteer's score. We believe that this result demonstrates that Dr Shanker's knowledge base and his ability to use information are seriously deficient."
[17]As to the simulated surgery, the conclusions were as follows:
"Our opinion is that Dr Shanker's performance in the simulated surgery was seriously deficient in all domains."
[18]As to the OSCE, the assessors' conclusions were as follows:
"Our opinion was that Dr Shanker's clinical skills in examination and in carrying out standard procedures are seriously deficient."
[19]The assessors then held a post-test discussion with the appellant. The summary of that is to be found at pages 30 and 31. I do not propose to read it out but it plainly supports the assessors' conclusions. There was a final interview of the appellant by the assessors. During the course of that final interview a number of questions were asked of Dr Shanker, designed to look at his approach to practice. He told them that his performance at Eston "was fine". He was asked if he, Dr Shanker, had identified any particular area he would like to improve, to which he replied "all of ear nose and throat medicine". He was asked to outline his strengths and weaknesses. He told the assessors that his strengths were that he had had no patient complaints during all his years in general practice and "he felt that all aspects of his practice were strong". He was asked about his future plans. The appellant said he wanted to go back to being a GP:
"He told us that he felt he could go back into a group practice as a principal. He was confident that he could work as a GP tomorrow."
[20]The assessors' conclusions were as follows:
"1. We consider Dr Shanker's knowledge base to be inadequate for him to function safely as a general practitioner. 2. We consider his Consulting skills to be unacceptably poor. 3. We consider his Clinical skills to be inadequate. 4. From our discussions with Dr Shanker in the final interview we take the view that he has no insight into his difficulties. 5. We believe that further attempts at retraining would be extremely unlikely to succeed because of the lack of any evidence of progress and Dr Shanker's belief that he has no problems."
[21]Dr Campbell, having explained his report to the CPP in his examination-in-chief, was the subject of a short cross-examination by counsel then instructed on behalf of the appellant. A crucial question was put to Dr Campbell, no doubt based on the evidence that it was expected Dr Norris would give. The question, or part of the question, was as follows:
"Bearing in mind he has been out of practice, do you think, in your professional opinion, that he may benefit if he were to be a senior medical student attached to an approved training practice by the Deanery where he would be actually practising, but would be supervised, and would get that clinical experience in order to improve his skills?"
[22]Dr Campbell's answer can be summarised thus. His feeling was that the appellant had had a fair amount of input and that, given the results of the assessment in May 2004, things went down rather than up.[23]The appellant gave evidence and was cross-examined. I summarise his evidence in this way. He, with the encouragement of Dr Norris, had attended courses, read textbooks and papers, and discussed matters generally with Dr Norris. At page 39 he was asked as follows, and answered as follows: Q. Can I consider the fourth concern, which is working within the limits of your competence. Can I ask you to explain to the Committee what you have done to address that deficiency? A. To improve my competence in general practice, I attended courses, read textbooks, papers, and also with Dr Norris, my mentor and, by combining all that, my performance is within the competence of general practice standards.[24]It is fair to say that he did thereafter accept that he had limits on his competence and that if he was allowed back into practice he should be in practice with other doctors. During his cross-examination he was asked this (see page 45): Q. What is your view now of your performance? A. I accept the assessment of Dr Campbell. Q. So does that mean that you accept your performance has been seriously deficient? A. Yes. Q. What has caused that change? In other words, the change between you saying in 2001, 'I'm just like any other GP,' to, for example, now you saying, 'I accept my performance has been seriously deficient.'? What has caused you to change your mind? A. I am looking with hindsight and have been attending courses and seminars, so I realise.[25]At page 48 of the transcript he accepted that his scores in the May 2004 assessment were worse than in April 2001. He sought to account for that by saying that he had not been seeing patients and he was out of touch with general practice.[26]At page 50 of the transcript the report of the assessors in May 2004 was put to him. When asked how he reconciled saying to the assessors in May 2004 that all aspects of his practice were strong and saying in evidence that some time after November 2001 he recognised his performance was seriously deficient, he answered:
"I mean that I had been seeing the patients' histories, done examinations and management and there had been no complaint or any negligence. That is what I was trying to say."
[27]A little later on on that page, he said:
"I have been practising for 25 years in different areas of the UK, I have been seeing 20, 30, 40 patients a day and there were no complaints from patients and there have been no negligence cases against me."
[28]After questions from the Committee, the specialist adviser challenged the appellant that there had been no complaints by patients, particularly when he practised in Grimsby between 1980 and 1996. He put to the appellant the contents of a note of a meeting between the appellant and Dr Norris on 30th September 2002 (see page 64 of the transcript) to the effect that the appellant had appeared two or three times in front of the local Service Committee, a disciplinary body that monitors the practice of GPs, and that he was "usually found not to be in breach of contract". The appellant went on to say that the complaints were not "natural" but "manipulated". At page 64 of the transcript he was asked: Q. So, looking back on that period in Grimsby, how many complaints do you think you had made against to -- justified or unjustified, or manipulated, or whatever? A. I cannot say a precise figure. About half a dozen, then I was cleared of all of them. Q. Is that compatible with the evidence that you have given before the Committee that there had not been any complaints made against your practice? [I interpolate that must be a reference back to page 50 of the transcript.] A. Complaints which come naturally where somebody is unhappy, where they have come from individual patients -- these complaints. But somebody being asked to complain, that is not a real complaint. Q. So these were not real complaints because people were manipulated by third parties to complain? A. Yes.[29]Dr Norris during his evidence said that he had seen and studied the assessment report of May 2004. At page 69 of the transcript he was asked what he would recommend. He gave a long but important answer, and I think in fairness, particularly to the appellant, I should set out part of it:
"Well, first of all, may I make a point about the recommendations re education that came from this report which said that Dr Shanker could be ineducable. I certainly reflected myself -- and I have seen him at least 20 times -- that his objective performance had not altered. In fact, not at all. Leaving aside the possibility that that may have been due to my lack of skill in education, I certainly agree with the recommendation that further mentoring and further one-to-ones and further private study would not have any effect in altering his behaviour, which is the whole idea of education. But I have thought very deeply about Dr Shanker's professional life. He has been isolated and alone and pressured for most of his professional life. He has never worked in a functioning group practice where the practice functions as a learning workplace. He has never seen a functioning primary care team and the only recommendation I can come up with which has any chance of success -- Before I say what I am going to say, whatever I propose would have to be checked by a further GMC assessment."
[30]He then went on to say a little later on:
"I would have thought that a clinical attachment would give Dr Shanker the status and function of a senior medical student."
[31]A little later on in the answer he said this:
"But I feel that that is the only possibility of altering the present situation. I think we have tried one-to-one and mentoring and private study. I think he needs intense exposure to good medicine, to good general practice of which there is a great deal about in London, to be able to change his understanding and his insight into what acceptable general practice in 2004 is. But, apart from that reservation, I have to agree with the recommendations and the conclusions of the assessment report."
[32]In another lengthy answer at page 71 of the transcript he reiterated that the appellant was "uneducable". Monitoring had not produced any change in his objective performance. He said that the appellant had become isolated. He, Dr Norris, could not help him further. Then, at the bottom of page 71, Dr Norris continued: A. I could not sit in front of this Committee after what the GMC assessment panel says and say I can help him because I manifestly have not. But a motivated, caring, compassionate trainer in a good practice might be able to open his eyes and show him what it is all about. This is a wish list and I know in reality, in the harsh world out there, this may not occur because I do not know anybody who would have the time to do this with the pressures there are in primary care at the moment. Q. Dr Norris, your wish list, as you described it, all of those items on that list could, if someone was minded to take on Dr Shanker, be achieved whilst he was suspended, is that correct? A. Yes, there is no way I could recommend that his suspension be lifted -- no way at all. Q. So, in effect, your recommendation to this Committee, having been Dr Shanker's mentor ... is to continue suspension but you ask the Committee, in effect, to consider whether that suspension may perhaps be in some way in conjunction with ongoing assistance, training, and so forth, which of course this Committee would have no power over? A. No power at all. I know the score. I think suspension without further education would be meaningless. He is looking for hope and the only hope I can see is that he has a far more intensive clinical education than I have been able to give him and this trainer which I talk about, I must be honest is theoretical because I know when the Deanery ask trainers to take on doctors for remedial education, the response is usually nil.[33]When questioned by the Committee Dr Norris said that the applicant's insight was hindered by his concrete thinking and by his belief that 25 years' experience is the proof of his competence. He almost needed "education therapy". He was then asked (see the bottom of page 73) as follows: Q. Could that be addressed within this clinical attachment scenario? A. In this theoretical -- I nearly said 'fantasy' -- scenario, I would like him to be in a setting where he is working with registrars and GPs who are training, he is present for tutorials, he is present for case conferences and presentations, his videos are discussed, as they are in teaching practices, and MRCGP videos are prepared, and so on. My feeling is -- if I may dare to use the word 'fairness' -- I do not think he has ever had that chance and, as I talked to him since the report, and as he does not want to stop, he cannot possibly go on unless there is objective evidence of change in competence, behaviour, attitude, and the only way I can think of changing it is the scenario I described.[34]Mr Harris, counsel for the appellant, took me to the relevant legislation and authorities. Section 36A of the Medical Act 1983 provides as follows:
"(1) Where the standard of professional performance of a fully registered person is found by the Committee on Professional Performance to have been seriously deficient, the Committee shall direct -- (a) that his registration in the register shall be suspended (that is to say, shall not have effect) during such period not exceeding twelve months as may be specified in the direction; or (b) that his registration shall be conditional on his compliance, during such period not exceeding three years as may be specified in the direction, with the requirements so specified."
[35]Sections 36A(4) and (5) provide as follows:
"(4) The Committee on Professional Performance may make a direction extending a period of suspension indefinitely where -- (a) the period of suspension will, on the date on which the direction takes effect, have lasted for at least two years, and (b) the direction is made not more than two months before the date on which the period of suspension would otherwise expire. (5) Where the Committee on Professional Performance has made a direction for indefinite suspension, they -- (a) shall review the suspension when requested to do so by the person whose registration is suspended (but not until two years after the date on which the direction takes effect and not more than once in any period of two years), and (b) having carried out such a review, may direct that the suspension be terminated."
[36]Section 40(1) of the 1983 Act sets out the decisions that are appealable. I do not propose to recite it. It was submitted by Mr Harris that upon a proper construction of that subsection, any review after two years following an indefinite suspension is not appealable. Mr Clarke, counsel for the GMC, submitted that that was wrong. Upon a review the Committee could either dismiss the application or terminate the suspension or make a period of suspension of no more than 12 months. Those powers would effectively be exercised under section 36A, for which section 40(1) provides an appeal. Furthermore, Mr Clarke submitted that if section 40(1) did not provide for an appeal, then it would be open to serious attack as not complying with Article 6 of the European Convention on Human Rights. I agree with Mr Clarke's submissions.[37]Section 40(5) of the Act, so far as is relevant to this appeal, provides:
"No appeal under this section shall lie from a decision of the Committee on Professional Performance ... except on a question of law."
[38]My attention was drawn to three authorities, for which I am grateful to counsel. The first is Sadler v General Medical Council [2003] UKPC 59. Lord Walker of Gestingthorpe gave the judgment of the Privy Council. I was referred by Mr Harris to two sentences in paragraph 73, which I accept are very important. Lord Walker said:
"The function of the CPP is not penal. It is to protect the public and to rehabilitate (if possible) practitioners whose professional standards have fallen too low."
[39]I was next referred to Stefan v General Medical Council [2002] UKPC 10 in which Lord Steyn gave the judgment of the Privy Council. The passages to which I refer are paragraphs 6 and 7 as follows:
"It is now necessary to turn to the framework of the appeal."
Lord Steyn then set out section 40(5) and continued as follows:
"The distinction between law and fact is often crucially influenced by the context. Here their Lordships are satisfied that a generous interpretation of 'a question of law' is needed so as to ensure that no injustice will remain uncorrected. In the context of s 40(5) it is within the appellate jurisdiction of the Board to consider whether there is any or sufficient evidence to support a material finding. A clearly erroneous finding may disclose an error of law warranting interference. And a material misunderstanding of the evidence may amount to an error of law. And it goes without saying that any unfairness in the hearing and decision making of the Health Committee may invalidate its decision. Without trying to be exhaustive about the circumstances in which they may intervene their Lordships are satisfied that their appellate jurisdiction is wide enough to ensure that justice is done. That is how their Lordships have approached the appeal of Dr Stefan." "7. It has to be said, however, that there was cogent evidence to support the Health Committee's conclusion. Indeed on the oral and written evidence the conclusion of the Health Committee was inevitable. Having given careful consideration to Dr Stefan's submissions before the Board their Lordships are satisfied that there is nothing in them which casts any doubt on the reasons and the conclusion of the Health Committee. And there has been no failure of due process or any infringement of her absolute right to a fair hearing."
I of course am bound by and must apply that dicta, particularly that in paragraph 6.[40]The final authority to which I was referred was a decision of Collins J in Dr Nandi v General Medical Council [2004] EWHC 2317 (Admin). In particular I was referred to paragraph 33 of his judgment:
"The court will in all the circumstances accord an appropriate measure of respect to the judgment of the committee. In Ghosh v GMC [2001] 1 WLR 1915 Lord Millett cited observations in an unreported earlier case of Evans v General Medical Council to this effect: '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 people for weighing the seriousness of professional misconduct, and that 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 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 that 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.'. "
A little later on Lord Millett said:
"But the board will not defer to the committee's judgment more than is warranted by the circumstances."
[41]The errors of law said to have been committed by the CPP were developed by Mr Harris in this way. There are three pillars, Mr Harris submitted, of the decision of the CPP: first, the assessors' report of May 2004; second, the taking account of matters relating to the appellant's character, credibility and honesty; and third, a finding of his lack of insight into and/or understanding of his problems. Whilst he cannot submit that pillar 1 of the CPP's reasoning is flawed, nevertheless, if pillars 2 and 3 are flawed, his submissions re pillar 1 are a matter to be taken into account. Pillar 1[42]In his skeleton argument, Mr Harris appeared to be challenging the consistency and/or adequacy of the tests performed in 2004. However, he retreated from that in his oral submissions and made it clear that he did not challenge the findings. He then made two points. First, these were tests in a simulated environment, and not tests in the context of actual practice. Thus the results do not automatically show what would happen in real practice. Second, the CPP, in assessing whether to suspend the appellant indefinitely, had to look to the future. What may have happened in May 2004 would not necessarily tell them what might happen in a year's time.[43]As implicitly conceded by Mr Harris, these points do not amount to an error of law by the CPP. The assessors were careful to note in their report that the appellant had been out of general practice for some time prior to May 2004. The CPP itself made allowance for that in their decision (see D2-11, C to D), but found that:
"Your scores in all areas remained far below the minimum expected of a registered medical practitioner."
[44]In my judgment it must also be remembered that the appellant's scores in the assessment in April 2001, at a time when he had not been out of general practice for so long as at May 2004, were hardly any better than those in May 2004. Pillar 2[45]Mr Harris submitted that the legal adviser correctly advised the CPP in the following terms:
"When looking at the evidence and deciding what course you should now take in relation to this doctor, you apply the usual, ordinary civil standard of proof -- that is, the balance of probabilities. You will know full well that the burden of proof rests throughout on the Council. When evaluating all the evidence that has been adduced to you, you will want to bear in mind all you know about this doctor and his character generally. You have the 1994 conviction that you heard about, which is now spent, and you have the conviction on 12 January this year for the offence of obtaining pecuniary advantage by deception, which, as you have heard, is the subject of an appeal, yet to be heard. You have also the matters in relation to whether or not he lied on oath at the previous hearing and when he gave a report to his colleagues. These matters, if you find them to be relevant, go only to Dr Shanker's credibility, veracity, honesty and integrity."
[46]Mr Harris contended that the passage in the Committee's determination from the bottom of D2-11H to the top of D2-12B shows that the CPP did consider matters affecting the appellant's character, credibility and honesty; but that they did not take them into account when considering the standard of his professional performance. Mr Harris's submission is that having found them to be irrelevant to the standard of professional performance, then they were not relevant at all and they should never have been taken into account. He submitted that by reason of the extracts at page 57E and page 65 of the transcript, the Committee were plainly interested, or at least members of the Committee were plainly interested, in matters relating to the appellant's character, credibility and honesty.[47]In my judgment, this is a simplistic and flawed submission. It was for the CPP to judge whether the matters that went to the appellant's character, credibility and honesty were relevant. If it was adjudged that they were relevant, they were nevertheless to be disregarded when the Committee considered the standard of the appellant's professional performance. What then were they relevant to?[48]Mr Clarke submitted, in my judgment, correctly that they were relevant to two matters: first, the credibility of the appellant's evidence to the CPP; and secondly, to his fitness to practise. It was submitted that the CPP were entitled to assess the evidence given by the appellant and in that regard could take into account his lies to the CPP in November 2001, his conviction and the underlying facts thereof, and his statement to Dr Norris re the question of complaints. Further, it was submitted that when assessing his fitness to practise, his character, credibility and honesty were factors to be taken into account. The question was posed by Mr Clarke: would he ever undergo training? As per Dr Norris, even if that was a practical proposition, the appellant maintained he was fit to practise, yet he failed to abide by the decision of the regulator in 2001 that he was suspended from practice. Pillar 3[49]This relates to the finding of lack of understanding at D2-11E. It was submitted by Mr Harris that the CPP had fallen into error by taking account of matters affecting the appellant's honesty. Mr Harris submitted that the CPP should have found that if the appellant had been telling lies in respect of the matters set out in the paragraph D2-11 between E and G, then the CPP ought to have found that in fact he did not have insight and he knew he lacked insight. Further, or in the alternative, that submission was buttressed by the answers that the appellant gave in cross-examination, which, it is submitted, the CPP did not consider adequately or at all. Those passages are to be found at page 45D to F, which I have already referred to in this judgment, and page 48C to F, where the appellant said that his scores in May 2004 were worse than they had been in April 2001 and that came about because he was not seeing patients and was out of touch with general practice. A further passage was referred to by Mr Harris at page 49E and the long passage to which I have referred, page 50D to 51A.[50]In my judgment, although the points raised under pillars 2 and 3 overlap, nevertheless, for the reasons advanced by Mr Clarke, I reject the submissions of Mr Harris about pillar 2. I am satisfied that the CPP did follow the legal assessor's advice and were entitled to take into account matters relating to the appellant's character, credibility and honesty if it found them to be relevant. They did find them to be relevant as to the issues of the credibility of the appellant's evidence and as to his fitness to practise.[51]With respect to the submissions under pillar 3, I cannot accept Mr Harris's contentions. The findings of the CPP were not flawed. They were based on all the circumstances of the case and the acceptance of the evidence of Dr Campbell and the report of May 2004. There was also the evidence of Dr Norris, which I have sought to set out, which was to the same effect. They were thus entitled not to accept the evidence to the contrary from the appellant. I am satisfied that they did consider the appellant's evidence but could not have accepted it (see in particular the paragraph in their determination D2-11F to G). For those reasons the appeal will be dismissed.[52]MR CLARKE: My Lord, I invite the court to assess the costs summarily. We have put in a schedule. I hope it has reached my Lord. If not, there is a spare copy.

MR JUSTICE BENNETT: I do not have it.

[54]MR CLARKE: I will hand up my copy. It is a very straightforward document.

MR JUSTICE BENNETT: Has Mr Harris seen this?

[56]MR CLARKE: I believe he has, yes. It comes out as a total of £5321.25. I understand that the appellant's costs were in the same order. They are about £6,000. I invite the court to assess the costs and submit that is a reasonable figure for a case of this nature.[57]MR HARRIS: My Lord, I cannot contest the principle that my client must pay the costs. A word though, if I may, on the amount of those costs. I appreciate the costs on our side are more or less the same as those on Mr Clarke's side, but of course our side brought the appeal and had to find grounds of appeal and so on, whereas Mr Clarke was responding, and therefore the work required on his side would have been substantially less. I ask therefore whether your Lordship would consider a reduction of the amount claimed to half of that currently claimed. My Lord, I can say no more. There it is.

MR JUSTICE BENNETT: Thank you.

[59]MR CLARKE: What I say is that the hours spent are reasonable in the circumstances. They are not excessive. The hourly rate, I would say, is a perfectly proper rate for an in-house solicitor for a public sector regulator. I do not think my learned friend is objecting to my fee. So I would submit that, given the amount of work that needed to be done on our side, preparing for this case and attending the hearing, it comes out as a fair figure.[60]MR JUSTICE BENNETT: Yes. My decision is that the appellant will pay the respondent's costs. As far as the sum is concerned, it seems to me to be perfectly reasonable and I will assess it in the sum claimed of £5231.25.[61]MR CLARKE: I am grateful.

MR JUSTICE BENNETT: Thank you both very much for your help.