Arora v General Medical Council [2008] EWHC 1596 (Admin)

Case No CO/1884/2008[2008] EWHC 1596 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 22nd May 2008
Strand
London WC2
B E F O R E:
MR JUSTICE BLAIR
Between
DR OM PRAKASH ARORAAppellant-v-
Between
GENERAL MEDICAL COUNCILRespondent
(Computer-Aided Transcript of the Palantype Notes ofWordwave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Miss Fiona Neale (instructed by Messrs Radcliffes LeBrasseur, London SW1P 3SJ) appeared for AppellantMs Catherine Callaghan (instructed by GMC Legal, London Nw1 3JN) appeared for Respondent
J U D G M E N T
[1]MR JUSTICE BLAIR: This is a statutory appeal by Dr Om Arora from a decision of the General Medical Council's Fitness to Practise Panel dated 25th January 2008, which determined that his fitness to practise was impaired by reason of misconduct and deficient professional performance, in respect of which a sanction of erasure was imposed.[2]Dr Arora ("the appellant") comes from a family of doctors. He qualified in 1971. The facts relating to the present matters are somewhat tangled. The position is that between January and July 2003 the appellant worked part-time as a clinical assistant in genito-urinary medicine at Birmingham Heartlands Hospital. He started work as a prison medical officer and general practitioner in Wandsworth in south London on 15th September 2003. It is right also to note that between April 2005 and April 2006 he worked as a locum at Acocks Green in Birmingham, doing, I am told, some 22 locum sessions.[3]In August 2003 concerns were raised with the General Medical Council ("GMC") about the appellant's performance in the Birmingham hospital. Between 11th and 26th May 2004 a performance assessment was carried out by Dr Harker and a team. This is the first of two performance assessments that Dr Harker was to carry out. It was a very detailed assessment. Overall, the assessment team found evidence of seriously deficient performance. Phase 1 consisted of interviews and reviews of medical records, and phase 2 consisted of tests of competence.[4]So far as phase 1 was concerned, there were seven areas which were deemed unacceptable and four areas deemed to give cause for concern.[5]So far as phase 2 is concerned, the objective structured clinical examination was acceptable, but knowledge and simulated surgery tests were unacceptable. The precise figures perhaps do not matter, but it is right to say that they were much lower than would have been expected.[6]Though this had been prompted by complaints as regards the Genito-Urinary Medicine Unit, the performance assessment covered the appellant's work as a doctor generally. Various conditions were recommended by Dr Harker and his team.[7]I now turn to a feature of this case which are the various lists that an NHS doctor like the appellant is required to be on. Following regulations enacted in 2004, from 1st April 2004 every general practitioner is required to be on a so-called Performers List maintained by a Primary Care Trust. In practice, this is usually the one where he or she is based. Additionally, from 1st April 2006 the GMC has maintained a list of registered medical practitioners for general practitioners like the appellant. For the avoidance of doubt, I should point out that these lists are not the same as the GMC Register of Medical Practitioners, which the appellant has been on at all material times up to the hearing in January 2008.[8]I now pick up the story on 27th May 2005, when the appellant applied to so on the Wandsworth PCT list. I should note that earlier that year he had been asked to be removed from the Liverpool PCT supplementary list, since he had moved to London. There is no doubt that his application was received by the Wandsworth PCA because a stamped receipt appears on the application dated 31st May 2005. Though there is some dispute about this, a file note may at least be taken to suggest that a request to process the application was in due course provided. The appellant in his evidence said that he had delivered the documents required, such as his passport, via the hospital internal post.[9]On 13th to 16th March 2006 the first performance assessment hearing took place before a GMC Fitness to Practise Panel. This was concerned with the assessment that Dr Harker had carried out in March 2004. It concluded that the appellant's fitness to practise was impaired in various respects, and placed him under conditions for a period of 18 months. These began to run from 27th April 2007, but that was only because an appeal had been brought as regards the March 2006 findings. That was abandoned on 27th April 2007 and the 18-month period began to run from that time.[10]The conditions included the following. First, the appellant was required to restrict his practice to posts under the supervision of a remedial supervisor approved by the Postgraduate Dean, who had to approve a personal development plan initiated by the appellant. The personal development plan had to address the areas of deficiencies as previously identified by the assessment team and found proved. That particular matter became relevant in due course in the January 2008 hearing.[11]Perhaps more fundamentally, the appellant was required to confine any general practice which he undertook to multi-handed practices, in which he would be supervised to the same level as a GP registrar. He was to undertake no practice as a single-handed GP. He was not to work in prison medicine and he was not to undertake any locum or out-of-hours work.[12]One other aspect of the appellant's practice also caused difficulties. He had worked for a while as an ophthalmic medical practitioner in Birmingham. On 11th April 2006 he was subject to an assessment in that regard by Dr Sudhir Patel. Dr Patel concluded that the appellant was not fit to test sight. Indeed, he said that he thought that the appellant was "unsafe".[13]But all this was engulfed in April 2006 by a further problem which overtook the appellant. On 13th April 2006 the Eastern Birmingham Primary Care Trust wrote to the appellant as regards the Performers List. It said as follows:
"It has come to the attention of the Eastern Birmingham Primary Care Trust that you have been working as a General Medical Practitioner with Dr Sen-Gupta, 999 Warwick Road, Acocks Green, Birmingham."
I interpose to say that the appellant accepts that he did indeed work as a locum, doing 22 sessions.[14]The letter continues as follows:
"No medical practitioner shall perform medical services unless he is included in the medical Performers List for a Primary Care Trust in England. The General Medical Council has established a List of Registered Medical Practitioners from the 1 April 2006 and, had your name been on a Performers List in any PCT in England, your name would have been included in the Register. I understand that you have advised Mrs Y Hull, Birmingham Primary Care Shared Services Agency, that you are on the Wandsworth PCT Performers List but they are unable to confirm this and you need to provide me with written evidence of registration on the Wandsworth list and the GMC Register. I would reiterate that you must not perform medical services until you are included on the Register. If you are on a Performers List for any PCT, please advise me immediately in order that we can confirm the position. I would confirm that the General Medical Council has been informed of the PCT's concern. The PCT will be undertaking further investigations into this matter."
[15]The appellant replied to this letter by a handwritten letter of 18th April 2006, which has been the subject of much attention at this hearing. He said as follows:
"I wish to bring it to your kind notice that I am working as regular (full time) GP Medical Officer with Wandsworth P.C.T. My employment started on 15-09-2003 with regular ten sessions per week."
[16]I interpose to say that that is a reference to his job with Wandsworth Prison:
"The original employment contract [is] enclosed here for yourself to view and certify to confirm. Actual performance list started as per GMC ruling on 01-04-06. But before this period performance list was not strictly in force although many GPs were in regular employment with respected P.C.Ts. Following a recent decision by GMC Wandsworth P.C.T. is going to move my job to different G.P. surgery but still with in PCT jurisdiction."
I interpose to say that that is a reference to the result of the hearing of the Fitness to Practise Panel in March 2006, which imposed certain conditions on the appellant which he needed to move away from his existing job to be able to meet.[17]Then the letter concludes with the following sentence:
"I therefore present my evidence (indirect) to state that I am on Wandsworth P.C.T. performance list."
[18]The response came swiftly. On 20th April 2006 the Eastern Birmingham PCT wrote to the appellant as follows:
"We have now received confirmation from Wandsworth PCT that you have never been on the Performers List of Wandsworth PCT. We have been informed that you submitted incomplete documentation to the PCT. I would again reiterate that you must not perform any further medical services in England until you are properly registered with the General Medical Council and have written confirmation that you are on a PCT Performers List. Clearly your future work in general practice will depend on the outcome of the GMC's Fitness to Practise Panel and the appeal process. This matter was discussed at the meeting of the PCT's Assessment Group on 19 April 2006. In view of the seriousness of the fact that you have been working as a GP whilst not on a PCT Performers List, including the Acocks Green Medical Centre, would you please submit: ..."
Then various further confirmations were required.[19]The appellant has not in fact worked as a doctor since these events. It was these events which led directly to the hearing before, and the decision of, the Fitness to Practise Panel in January 2008 and indeed to this appeal. The statutory provisions[20]I can summarise these relatively briefly. They are to be found in the Medical Act 1983 (as amended). Under the statutory scheme, where an allegation is made to the GMC against a registered person that his fitness to practise is impaired, the provisions of section 35 come into play (see section 35C). By section 35C(2):
"A person's fitness to practise shall be regarded as 'impaired' for the purposes of this Act by reason only of — (a) misconduct; (b) deficient professional performance; ..."
There then follow three other categories which are not presently relevant.[21]If the Investigation Committee decides that the allegation ought to be considered by a Fitness to Practise Panel, it is referred to such a panel. In the present case, they did so decide.[22]Section 35D sets out the functions of a Fitness to Practise Panel. Where the Panel find that the person in question's fitness to practise is impaired, they may impose a number of sanctions. These are erasure from the register, suspension and conditional registration. Where the Panel finds that the person's fitness to practise is not impaired, they may nevertheless give him a warning regarding his future conduct or performance. There are then various provisions enabling a review to take place of the decision of the Panel (see subsections (11) and (12)). These are relevant in this case, as I shall describe shortly.[23]I should also note section 40 of the Act. By this section there is an appeal from the decision of the Panel to the High Court. That is the route by which the matter has come in this case. The decision of the Fitness to Practise Panel[24]This was a substantial hearing. The Panel considered the appellant's case over some ten days between 14th and 24th January 2008. Because of the somewhat tangled factual position that I have described, the Panel considered two separate matters. The first was an allegation of impaired fitness to practise by reason of misconduct and deficient professional performance. That was Notice A. Notice A was itself in two parts. The first part concerned the assessment of Dr Arora's performance carried out by Dr Patel. To expand a little on what I said earlier about that, the Patel assessment consisted of two sight tests carried out on two separate patients and a knowledge test.[25]The second part of Notice A concerned conduct issues relating to the appellant. In particular, it was alleged that he had worked as a locum GP while not on the medical Performers List for any PCT and while not on the GMC's General Practitioner Register. But much more significantly so far as the appellant was concerned, it also alleged that the appellant had been dishonest, in writing the passage of the letter that I have quoted written on 18th April 2006, which is said to have amounted to a statement that he was on the Wandsworth PCT Medical Performers List when he knew or ought to have known that he was not on the list. This was as I have said an allegation of dishonesty. Miss Neale, who has appeared for him on the appeal, as she did in front of the Panel, has candidly accepted that so far as the appellant is concerned this is by far the most serious aspect of the case, as indeed one can well imagine.[26]The second matter considered by the Panel was a review hearing, to review the conditions imposed on the appellant's registration by the previous Fitness to Practise Panel that reached its decision in March 2006. It had to determine whether his fitness to practise was impaired by reason of deficient professional performance, or whether he had complied with the conditions imposed by that Panel. This was contained in Notice B.[27]The findings of the Panel can be summarised as follows. In relation to the performance allegations in Notice A, it found that the tests conducted by the appellant which were described by Dr Patel were below the standards to be expected of a reasonably competent medical practitioner delivering ophthalmic services, and that his knowledge of primary care ophthalmic practice for the "four eye care pathways" was below the standard expected of such a practitioner.[28]In relation to the conduct allegations in Notice A, the Panel found as a fact that the appellant had worked without being on the appropriate list or register. It upheld the dishonesty application. It found that the appellant had written on 18th April 2006 to the Eastern Birmingham Primary Care Trust, stating that he was on the Wandsworth PCT list when he "knew or ought to have known" that he was not, and that such actions were "misleading, intending to mislead, dishonest, and likely to bring the profession into disrepute."[29]The Panel went on to find that the appellant's fitness to practise was impaired by reason of misconduct and deficient professional performance; in other words, the first two sub-grounds mentioned in section 35C(2) of the Medical Act 1983 to which I have already referred.[30]So far as Notice B was concerned, the Panel noted that the matter had been first considered by the March 2006 Panel. It referred to the full performance assessment carried out in May 2004. In phase 1 of that assessment, the appellant's performance was found, as I have said, to be unacceptable in seven areas of good medical practice and a cause for concern in four other areas. I need not repeat the position as regards phase 2 of that assessment.[31]The Panel noted that the appellant had undergone a further assessment by the assessment team in November 2007. It noted that he had failed the knowledge test, with a score considerably below the minimum acceptable level. It also heard evidence that he did not submit a personal development plan until 13th November 2007, without providing an explanation for the delay. At any rate, it determined as regards Notice B that his fitness to practise was impaired by reason of his deficient professional performance in the second assessment, and determined that he had failed to comply with a requirement imposed on him by the 2006 Panel in relation to the personal development plan.[32]The Panel considered sanctions in relation to both Notices A and B together. It concluded that the imposition of conditions or a period of suspension would not reflect the seriousness of his conduct and would not be sufficient in the public interest. In the outcome, as I have already indicated, the result was that it directed that the appellant's name be erased from the medical register. The court's approach on an appeal[33]The appellant appealed to the High Court under section 40 of the Medical Act 1983. The court's approach to such an appeal has been authoritatively considered in a number of recent cases. These are: Meadow v General Medical Council [2007] QB 462; Raschid v General Medical Council [2007] 1 WLR 1460; Gupta v General Medical Council [2007] EWHC 2918 (Admin). In short, these cases emphasise that the central concern of the Panel is with the reputation and standing of the profession, rather than the punishment of the individual doctor. It is clear in that regard that the judgment of the Fitness to Practise Panel deserves particular respect on an appeal, especially in cases concerning standards of professional practice and treatment. It is of course the case that a section 40 appeal is a rehearing and not a review, and the High Court may correct errors of law and fact, but it will not interfere with the decision of a Fitness to Practise Panel unless persuaded that it was wrong. The decision in Raschid in particular emphasises that the court will exercise a strictly secondary judgment, so far as it acts as an appellate body. The appellant's case[34]The appellant has taken a number of points on the appeal. The first relates to the finding of dishonesty made against him. It is argued that the Panel should have found that there was no case to answer in that regard, in accordance with a submission made to that effect on his behalf. That submission was made in accordance with the relevant rules at the conclusion of the case for the GMC.[35]Miss Neale submits that at that point in time the evidence showed as follows:(1) a doctor who was entitled to be on a list had made a proper application to join it;(2) the doctor had been asked for further information and documents, and had apparently supplied further information or documents;(3) there was no communication to him suggesting a problem or delay with his application; and(4) and crucially in her submission, he was or should have been, as she puts it, high on the PCT's radar, as he was in its direct employ at the time.[36]Miss Neale submits that there was wholly insufficient evidence at that stage to support a finding of dishonesty. The way she puts it is that there was no evidence upon which a reasonable jury properly directed could convict. The rejection of that submission by the Panel, she submits, was wrong. She further adds that it is unclear upon what basis it was rejected.[37]However, in the court's judgment it is clear upon what basis this submission was rejected. The Panel had the benefit of expert legal advice. It was correctly advised to approach the issue on the basis of the well-known Galbraith case, which governs the point when it arises in a criminal trial. The Panel was perfectly entitled to take the view that at that point there was a case to answer and go on to assess the matter in the light of the appellant's explanation.[38]As I have explained, the Panel did in the event find that the allegation of dishonesty had been proved. Miss Neale also attacks this finding and here her point appears to me to be more compelling. First, let me say that I do not accept the argument that the Panel's reasoning was deficient because it was too brief. A panel of this kind is under no obligation to state its reasons in an extended manner, and what it did say was as follows:
"... the actions found proved ... were misleading and you intended them to mislead. These actions satisfy the test of dishonesty stated in Ghosh [a well-known criminal authority], and therefore, the Panel has found that these actions were dishonest and likely to bring the profession into disrepute."
[39]When one looks at the decision, it is plain and indeed unsurprising that the Panel had regard to the section relating to dishonesty in the indicative sanctions guidance. This gives a number of examples of dishonesty as follows:
"Examples of dishonesty in professional practice could include defrauding an employer, improperly amending patient records or submitting or providing false references, inaccurate or misleading information on a CV and failing to take reasonable steps to ensure that statements made in formal documents are accurate."
[40]The Panel also noted the guidance contained within Good Medical Practice, which states as follows:
"You must be honest and trustworthy when writing reports, completing or signing forms, or providing evidence in litigation or other formal inquiries. This means that you must take reasonable steps to verify any statement before you sign a document. You must not write or sign documents which are false or misleading because they omit relevant information."
[41]It is I think worth making a number of observations at this point. The first is that the importance of record-keeping and accuracy in formal documents by a medical practitioner is without question. Failures in this regard clearly may potentially amount to misconduct. But dishonesty is a particular type of misconduct. The distinction between what someone knows or chooses to ignore on the one hand and what someone should have known on the other is fundamental. The one supports a finding of dishonesty, the other, however gross the negligence, does not.[42]I note that the Panel went on state as follows:
"The Panel heard, during your oral evidence that you believed you were on the Performers List when in fact you were not. There was no evidence that you made any attempt to check that you were on this list. The purpose of the Performers List and the GP Register is to give confidence to the Health Authorities, PCT's and the public. It is important that these lists are accurate and up-to-date."
[43]It is certainly most important that these lists are accurate and up to date. A doctor, apart from anything else, cannot lawfully practice without being on one. But I consider that there is force in Miss Neale's argument that the Panel elided a want of care with dishonesty. Indeed, Ms Callaghan for the respondent, whose submissions have been most clear and helpful, states as follows in paragraph 25 of her skeleton argument:
"25. In other words, it is clear from the FTP Panel's decision that it reached a finding of dishonesty on the basis of Dr Arora's failure to take any steps to ensure the accuracy of the statement in his letter concerning his inclusion on the Wandsworth PCT list."
[44]I am satisfied that accords with the reality of the position. But a failure to take steps to ensure the accuracy of a statement is different from a statement which is made dishonestly. The findings of the Panel, and in particular their findings as to the evidence, in my view are insufficient to ground such a serious charge and the finding of dishonesty against the appellant cannot stand.[45]The next question is what follows from this. Miss Neale submits that once dishonesty goes, there is nothing left upon which to base a finding of misconduct. I am not satisfied that this is necessarily correct. As Ms Callaghan points out, working as a doctor without being on a required list is an extremely serious matter.[46]After careful reflection, I have decided that the right course is to remit the matter to a Panel to reconsider the issue of misconduct afresh, on the basis that, as a matter of law, there is insufficient evidence to establish dishonesty against the appellant. It will be for the Panel to determine whether the appellant's conduct nevertheless amounts to misconduct, or whether where he acted honestly, it did not cross that threshold.[47]The next basis for the appeal is as follows. It is common ground between the parties that, as regards Notice A, the Panel found impaired fitness to practise by reason of deficient professional performance on the appellant's part, on the basis of Dr Patel's assessment. I repeat that there was, of course, the separate Notice B. Here the same conclusion was based on two much more extensive appraisals of the appellant's performance from March 2004 and November 2007 respectively. But Miss Neale submits that even if to that extent the Notice A outcome on this point might be academic, the appellant is entitled to have the matter correctly dealt with as regards Notice A, as indeed he is.[48]As set out in the appellant's skeleton argument, a number of issues are raised. It is said that there was no assessment of actual professional performance. It is said that a one-off assessment in test conditions by one person is not a fair sample. The conclusion by the Panel that "the assessment carried out in your own practice, using your own equipment, represented a fair sample of your work" missed, it is submitted, the essential point.[49]Then there is a point of a somewhat different nature. It is submitted that the Panel ignored or refused to admit evidence that the appellant could do better, because, it is said, it took an incorrect view of the issue to be determined.[50]In a little more detail, what is said is as follows. Dr Patel's assessment, it is submitted, was a test involving no actual patients. It was considerably less well recorded than a more formal test would have been. It only covered that part of the appellant's skills and knowledge in which he worked as an ophthalmic medical practitioner, and did not involve any scrutiny of his actual practice. There was no evidence of even a single patient's complaint or a single instance of actual substandard care. No evidence was sought from his records or from anyone with whom he had worked or from any patient of his. It was, it was submitted, not an assessment of performance at all. It was a single person's view of his skills and knowledge on a single occasion, some 22 months before the hearing.[51]Miss Neale has drawn attention to the language of the various statutory provisions, which define the question as being whether a doctor's fitness to practise is impaired by reason of deficient professional performance. She says the word "is" is crucial.[52]I should add at this point that Miss Neale accepts that the mere fact that this particular report was limited to the ophthalmic aspect of the appellant's practice does not of itself mean that the Panel was thereby precluded from making a finding of deficient professional performance in general terms.[53]The meaning of "deficient professional performance" has been considered recently by Jackson J in the case of Calhaem v General Medical Council [2007] EWHC 2606 (Admin). In that case it was held as follows:
"'Deficient professional performance' within the meaning of [section] 35C(2)(b) [of the Medical Act 1983] is conceptually separate both from negligence and from misconduct. It connotes a standard of professional performance which is unacceptably low and which (save in exceptional circumstances) has been demonstrated by reference to a fair sample of the doctor's work."
[54]I should say at this point that, as Ms Callaghan explained, the effect of the 2002 amendment to the definition of the term "professional performance" in section 55 of the Medical Act 1983 was to include within it a medical practitioner's professional competence. The latter was the subject of Dr Patel's report. It may be that this amendment was enacted to resolve the doubt that appears to have been cast on that proposition by a number of previous authorities that Miss Neale cited to me. She accepts, I think, that from an analytical perspective, professional competence is within the amended definition of section 35.[55]When considering this matter, the Panel stated as follows:
"In considering your performance, the Panel concluded that the assessment carried out in your own practice, using your own equipment, represented a fair sample of your work and demonstrated that your performance had been woefully deficient. You were uncomfortable with some of the equipment. You could not answer adequately the clinical questions posed by Dr Patel thus failing to demonstrate essential knowledge required by a Medical Practitioner providing ophthalmic services."
[56]In my view this was a finding which was open to the Panel to make. I reject the contention that the assessment did not involve an assessment of the appellant's professional performance. I note that it lasted a whole day. While it is correct that the assessment of his ability to conduct sight tests was restricted to two patients, the matter was concerned with a relatively limited area of practice. The fact that the assessment did not involve genuine patients does not, in my view, affect the fact that this was an assessment of the appellant's professional knowledge and skills in areas of his ophthalmology practice. It seems to me, as regards a fair sample, that the Panel's observations in this respect were justified too.[57]So I come to the final point that is taken in this regard. Prior to the hearing, the appellant had obtained the views of an expert called Mr Starr. Miss Neale told me that Mr Starr could have given evidence supporting the appellant's case as to his professional competence, based on an assessment of him carried out in January 2008.[58]In order to understand Miss Neale's argument, it is necessary to appreciate that a Fitness to Practise Panel has to conduct the hearing according to the rather prescriptive rules contained in Rule 17 of Rules made in 2004. In summary, it is obliged to make its findings in various stages: first, as to the facts; second, as to whether, on such facts, the practitioner's fitness to practise is impaired; and finally, if things get that far, as to sanction.[59]In the present case, the Panel was prepared to admit Mr Starr's evidence on the question of sanction. However, Miss Neale maintained that it should be admitted at stage 2. She was not, as I understand it, prepared to adduce it at any other stage. In the event, the Panel having taken the view that it could not be admitted at that stage, it did not come before the Panel.[60]The Panel's reasoning, as I understand it, was based on the reading of Rule 17(2)(j), to the effect that the question whether the practitioner's fitness to practise is impaired shall be decided on the basis of any facts found to be proved, in other words at the first stage. Miss Neale says that this raises a point of principle. If so, I do not think that it is for me to resolve it at this time.[61]I do not therefore express any final conclusions as to Miss Neale's argument on this point, but simply say as follows. My preliminary view is that evidence of the kind that she wished to call could, in principle, be admitted at stage 2. This view is consistent with the approach recently taken by Silber J in Cohen v General Medical Council [2008] EWHC 581 (Admin). In that case the judge pointed out that the doctor's shortcomings may as a factual matter have been remedied by the time of the disciplinary hearing (see paragraph 62 to 66). This case was decided after the hearing in the present case.[62]Miss Neale's submissions in this regard are set out relatively briefly in her written argument. In short, she says that this evidence should have been received on stage 2 and that a failure to do so amounts to a procedural defect requiring the court to intervene.[63]Nothing in writing has been produced from Mr Starr, though I am told that a written report exists. The evidence could, as I have said, been adduced to the Panel at the sanction stage, where it would have been of equal if different potential significance, but it was not. If it had been, it would at least have been possible to take a view as to whether it might have made a difference at stage 2.[64]I agree with Ms Callaghan for the GMC, who has submitted that it would not be right in all the circumstances to decide this matter on an academic footing, in circumstances where the court really has no idea as to the weight and content of the evidence, or whether it might have made a difference and, if so, what difference. That appears to me to be particularly so in circumstances where there was in fact an opportunity to adduce the evidence, albeit at a later stage. At any event, I am satisfied that the appellant's submissions under this head cannot succeed. Sanction[65]It is contended on the appellant's behalf that the outcome of the hearing should not have been the erasure of his name from the register. It is submitted on his behalf that the court should at this point set aside the entire sanction and merely leave in place the conditions that had already been imposed following the 2006 decision.[66]I am afraid I consider that to be unrealistic. I do not believe it is appropriate for me to express a view on the sanction that should be imposed in this not uncomplicated case. I have already indicated that the matter will be remitted to the Panel to determine the misconduct issue in the light of my ruling as to dishonesty. I consider that the question of sanction should be reconsidered by the Panel at the same time.[67]I should end by expressing my gratitude to the parties for their outstanding assistance in the course of this appeal.[68]MISS NEALE: Would your Lordship give us a moment?

MR JUSTICE BLAIR: Of course. (Long pause)

[70]MISS NEALE: Just to clarify, we understand that your Lordship set aside the finding of dishonesty.

MR JUSTICE BLAIR: Yes.

[72]MISS NEALE: Set aside the finding of misconduct, not on the basis that your Lordship is finding against that, but on the question that your Lordship is remitting that to be reheard.

MR JUSTICE BLAIR: Yes.

[74]MISS NEALE: And done the same in respect of the overall sanction, set it aside, but not on the basis that you are taking a view that it is wrong or that anything should be substituted but that it should be reheard.[75]MR JUSTICE BLAIR: It seems to me that given the significance of the dishonesty finding, it would be right for the Panel to reconsider the issue of sanction afresh --[76]MISS NEALE: Yes.

MR JUSTICE BLAIR: -- given that that particular finding has gone.

[78]MISS NEALE: Thank you. We just wanted to check we had all correctly understood. (Pause)

MR JUSTICE BLAIR:

[80]MISS NEALE: Ms Callaghan is kindly volunteering, I do not know if this helps your Lordship, to draft the order.

MR JUSTICE BLAIR: It helps enormously.

[82]MISS NEALE: I am afraid my instructing solicitor will have to deal with it, because I am being sent out to the sticks tomorrow and shall not be available, I am afraid.

MR JUSTICE BLAIR: I think in fact if you would like to stay, it can be done straightaway.

[84]MISS NEALE: We would be very much obliged. (Pause)[85]Subject to your Lordship's approval, on the question of costs, we are jointly submitting that the appropriate order would be no order for costs.[86]MR JUSTICE BLAIR: Thank you. I think, if I may say so, you have both taken a very realistic view. Thank you both for your help.[87]MISS NEALE: Thank you very much.