Abrahaem v General Medical Council [2008] EWHC 183 (Admin)

Neutral Citation Number: (2008) EWHC 183 (Admin)

Case No CO/5286/2006

IN THE HIGH COURT OF JUSTICE

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

Date 8 th February 2008

Before

THE HON MR. JUSTICE BLAKE

Between

DR. ABRAHAEMAppellant

GENERAL MEDICAL COUNCILRespondent

(Transcript of the Handed Down Judgment of

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Robert Kellar Esq. (instructed by Bar Pro Bono Unit) for Appellant

Miss Gemma White (instructed by GMC) for Respondent

Hearing Hearing dates: 24 th January 2008

Judgment

Mr. Justice Blake :

[1]This is an appeal by Dr. Abrahaem (the Appellant) from a decision of a Fitness to Practice Panel of the GMC (the Panel) dated 25 May 2006 whereby it imposed restrictions on his registration as a medical practitioner in the UK having previously found that his fitness to practice was impaired.

[2]The Appellant was trained in medicine in Egypt. He came to the UK in 1992, was admitted to the Royal College of Surgeons in 1994 and has been practising in the field of thoracic and general medicine since then. In March 2001 conduct came to light that led to his prosecution for possession of a Class A and Class C drug and a finding of a Professional Conduct Committee dated 2nd September 2003 of serious professional misconduct with the penalty of erasure from the register. When the conduct in question came to the attention of the GMC, the Interim Orders Committee imposed conditions on 16th October 2002 restricting his ability to possess or prescribe drugs whilst the allegations of misconduct were investigated.

[3]The penalty of erasure was quashed on appeal to this court on January 26th 2004 by Newman J. who concluded it was disproportionately severe in the light of the explanation for the conduct that the Appellant gave that was not challenged. The circumstances are fully set out in that judgment

[2004] EWHC 279 (Admin)

to which further references will be made below. The learned judge substituted a sanction of one year’s suspension. Although the Appellant had been convicted of possession of drugs at the Crown Court on the judge’s direction and fined £500, that conviction was quashed by the Court of Appeal on the basis that his explanation for the possession of the drugs could have provided him with a defence of reasonable excuse, and the trial judge’s directions were therefore wrong in law.

[4]The conduct that ultimately led to the sanction of suspension can be summarised as follows. In 1999 whilst working at the Bedford NHS Hospital the Appellant acquired and removed for his personal possession nine blank prescription forms. Between February and March 2001 he used three of these prescription forms to obtain medication for his wife and children who were unwell but about to travel abroad where the medication was not readily available. The prescriptions were signed in a false doctor’s name and made out to a false patient’s name and address. When a chemist alerted the authorities, the Appellant was arrested and a search of his residence at the Maidstone Hospital where he was now working revealed the six remaining Bedford forms, two unused prescription forms taken from Medway Maritime Hospital and a large quantity of drugs found in unsecure conditions in his room. These drugs included 110 morphine sulphate capsules, 43 temazepam tablets, quantities of dihyrodcodeine and various other prescription only and non prescription medicines some of which were out of date. Newman J. in his judgment at [8] and [14] characterised this conduct as a “consistent, devious and calculated course of dishonesty and conduct in relation to prescriptions” and that the Appellant was “rightly criticised for the irresponsible way in which he had kept drugs in his room, for not having taken steps to dispose of them and for keeping them in the insecure manner which he did, where they could have been easily open to abuse and exploitation”.

[5]The only reason why the otherwise appropriate sanction of erasure was considered disproportionate in this case, was that the Appellant’s explanation of his conduct had been accepted or was assumed to be true. The prescription misconduct was restricted to assisting his family and involved unnecessarily irregular means as many of the medicines, including such non-prescription only items as Calpol, could have been obtained over the counter. Although the quantities involved were large his wife was a registered nurse skilled in the administration of medication. There remains the disturbing fact that the Appellant had forged these prescriptions.

[6]As regards the drugs found in his room it was accepted that the Appellant had been asked by leaders of the Muslim community in the UK to assess the medicines that had been donated for charitable purposes by members of the public for use in Palestine where there was a dire shortage of medicines. The Appellant considered that possession of the drugs in order to assess their charitable utility abroad was consistent with his medical skills and status as a doctor.

[7]Newman J. made clear that apart from the misconduct revealed above, the Appellant was at least a competent and valued doctor, whose services ought in principle to be available to his patients in the United Kingdom and he was unlikely to repeat the misconduct in question [36]. It was recognised, however, that he had failed to show insight into his misconduct and its seriousness [30]– [31], and the extent to which it diminished the standing of the profession as a whole in public esteem that has long been held to one of the central purposes behind the GMC’s disciplinary functions. In the light of these observations it is clear that the learned judge contemplated that after a period of suspension and review, the GMC could impose restrictions on his registration “which can bring home to him the limitations on his practice” [40].

[8]In January 2005, the 12 month period of suspension substituted by Newman J. came to an end and a Fitness to Practice Panel had to review the matter and decide what course to adopt. There was no input from or communication with the Appellant. In the circumstances it felt obliged to continue the suspension for another 12 months and expressed the hope that the Appellant would engage with the Panel at the next review.

[9]In fact, unbeknown to the Panel, following the decision of the Interim Orders Committee, the Appellant took the view that he would not be able find work in the UK as a doctor under such conditions. I observe that Newman J. thought that would be the probable result of those conditions. Instead he went to Saudi Arabia where at some point in 2003 he worked at the North West Armed Forces Hospital (NWAF) where he was quickly promoted to be the Head of Pulmonary and Respiratory Care Departments and by April 2005 was responsible for the postgraduate educational programme for the Department of Medicine. It appears that the arrangements he made for delivery of mail in the UK had broken down and he never received notice of the January 2005 hearing.

[10]A substantial exchange of correspondence took place between the Appellant and the GMC between February 2005 and December 2005 and after and no point is now taken that he has not engaged with the Panel. Apart from testimonials from his peers in senior positions in NWAF (Dr Al-Dahi, Dr. Yousof, Dr Ishmael and Dr. Abou-Halimah), the Appellant presented substantial evidence of continuing professional development in his area of clinical expertise by attending courses at European Respiratory Society (ERS) Congress in Vienna (September 2003), at Imperial College (April 2004), Institute for Lung Health Leicester (January 2005), at a Royal College of Physicians workshop (February 2005) and course (April 2005); the ERS Congress in Copenhagen (September 2005) and course (November 2005). This was in addition to regular workshops that he attended or conducted in Saudi Arabia.

[11]In December 2005, the Panel again met to consider the Appellant’s case. On this occasion he attended and was represented by counsel, Mr. Kellar instructed by the Bar Pro Bono Unit who also appears for the Appellant before this court. The Appellant had submitted a written statement, gave evidence in person and relied on the documents testifying to his professional development and work in Saudi Arabia since 2003.

[12]Under rule 22 (f) of the General Medical Council (Fitness to Practise) Rules Order in Council 2004 (2004 No 2608) the Panel on a review hearing first decides whether the fitness to practise of the practitioner is impaired and gives its reasons for that decision and then goes on to consider the consequences of any such conclusion.

[13]At the conclusion of the first part of the hearing, the Panel gave its reasons in the following terms:

“The Panel feels that you still lack sufficient and overall insight. The Panel is concerned that in your oral evidence you did not show insight into the inappropriateness and dangers of possessing and storing large quantities of medication. Mr. Justice Newman emphasised that it was a central core standard of the medical profession in this country that in relation to drugs and prescriptions in relation to drugs, a doctor’s conduct is thorough, rigorous and to the letter. The Panel has received evidence about the courses you had attended. Those courses are relevant to your continuing professional development but do not, however, address the allegations of dishonesty and misconduct found proved by the Professional Conduct Committee in September 2003. Having considered all of the information before it, the Panel has determined that your fitness to practise is impaired.”

[14]The hearing was then adjourned to consider what the consequences of this conclusion should be. The Appellant returned to Saudi Arabia, continued with his professional work there, and on the 8th and 15th May 2006 delivered a two part lecture to his colleagues on best practice with respect to handling and prescribing drugs, the slides from which were before the Panel at the next hearing.

[15]On the 25th May 2006 the Panel resumed its deliberations and heard submissions from counsel for the GMC and Mr. Kellar. No further oral evidence was heard. The GMC representations were to the effect that in the light of the evidence heard in December and the Panel’s conclusions, a further period of suspension was necessary. In the alternative, at the very least a period of conditions should be imposed on the Appellant’s registration and it was submitted: “… which could include: supervision of his practice given that he has not practised in the UK for so long; restrictions on his prescribing or supervision of his prescribing, given his inappropriate use of prescription pads and also the inappropriate nature of the quantities that were included on the prescriptions; and a requirement for some form of retraining or education regarding the safe storage and handling of controlled drugs”.

[16]Mr. Kellar for the Appellant submitted that there was no need for conditions as the Appellant had sufficiently addressed the lack of insight in respect of his handling of drugs, and undertakings were offered in essence to comply with the UK regulatory scheme, not to self-prescribe or prescribe for his family and not to take possession of drugs save those that were prescribed by others for personal use by the Appellant or his family.

[17]Having heard these submissions the Panel delivered its decision later that day. Having summarised the evidence and submissions before it, it concluded in the following terms that it is appropriate to set out in full:

“… The Panel remains of the opinion that, in the light of the seriousness of your misconduct and your as yet limited insight, it would not be sufficient to conclude your case. The Panel went on to consider whether to accept the undertakings you have offered. It is mindful of its duty to protect the public interest, which includes the maintenance of public confidence in the profession and the upholding of proper standards of conduct and behaviour. The Panel has considered the submissions made by Mr. Kellar and Miss Timms regarding these proposed undertakings. It has had regard at the GMC’s Indicative Sanctions Guidance (April 2005). It has also had regard to the GMC’s Procedure and Guidance Note on Undertakings (June 2005), and has carefully assessed whether the undertakings satisfy all the requirements of that document: sufficiency, transparency, whether they are specific, measurable, attainable and realistic, whether you have sufficient insight to abide by them and whether they cover any conditions it would otherwise impose. The Panel found the undertakings to be wholly inadequate in that they do not address, sufficiently, either the matters that brought you before the GMC, or the Panel’s serious concerns regarding the impairment of your fitness to practise. Furthermore, the Panel takes the view that in your case no undertakings are sufficient to protect patients and the public interest and, in any event, it is premature to lose both jurisdiction of this case and the opportunity of reviewing it. The Panel has therefore decided not to accept the undertakings. The Panel then considered whether it would be sufficient for the protection of the public, in the public interest and in your own interests, to impose conditions on your registration. The public interest may, on occasion, include a doctor’s return to safe work. The Panel is mindful of the need for proportionality in balancing the public interest and your interests. The Panel has noted Miss Timm’s submissions that, should the Panel consider imposing conditions on your registration, these conditions should include supervision of your practice and restriction or supervision of your prescribing and retraining. The Panel has noted Mr Kellar’s submission on your behalf that supervision of your practice is not necessary, that you wish to return to the UK to work as a Consultant and that you have been unable to locate any course related to training in the safe-handing and storage of drugs. The Panel has noted that the testimonials you produced are from your peers and none has been provided by your employer. Having taken all the evidence into account, the Panel is of the opinion that you still lack sufficient and overall insight, that you have only made limited progress and that you have been out of clinical practice in the United Kingdom for nearly four years. Consequently, it has determined that it would not be sufficient to allow you to return to work in an unrestricted capacity. However, it considers that imposing conditions on your registration would be sufficient for the protection of patients, in the public interest and in your own interests. The Panel has therefore determined that your registration should be the subject to the following conditions for a period of 18 months: 1. You must inform the General Medical Council within 7 days of your return to the United Kingdom. For confirmation, the following conditions can only be fulfilled in the United Kingdom and the monitoring of your compliance with these conditions will start from the date of your return. 2. You must notify the General Medical Council promptly of any post you accept for which registration with the General Medical Council is required and provide the General Medical Council with the contact details of your employer. 3. At any time that you are employed, or providing medical services which require you to be registered with the General Medical Council, you must place yourself and remain under the supervision of a workplace supervisor of Consultant grade nominated by your employer, and agreed by the General Medical Council. 4. You must allow the General Medical Council to exchange information with your employer, or any organisation for which you provide medical services, and any individual involved in your supervision. 5. You must inform the General Medical Council of any formal disciplinary proceedings taken against you, from the date of this determination. 6. You must inform the General Medical Council if you apply for employment outside the United Kingdom. 7. You must confine your medical practice to National Health Service training or supernumerary posts in medical specialities, where your work will be supervised by a named Consultant. 8. You must confine your medical practice to posts within the National Health Service and not undertake any private practice. 9. You must not undertake any locum posts of less than three month duration. 10. You must not undertake any out-of-hours work or on-call duties. 11. You must not possess those drugs listed in Schedule 1-3 of the Misuse of Drugs Regulations 2001, as may be amended from time to time. 12. You must only prescribe drugs under arrangements which have been agreed between the General Medical Council and the medical practitioner of Consultant grade supervising your work. 13. You must not prescribe for yourself or a member of your family. 14. You must inform the following parties that your registration is subject to the conditions, listed at 1 – 13, above: (a) any organisation or person employing or contracting with you to undertake medical work. (b) any prospective employer (at the time of application). The Panel considers that this period is necessary to enable you to return safely to work in the Unit Kingdom as it is likely you will have become de-skilled, and to demonstrate that there has been no recurrence of your misconduct. (a) any organisation or person employing or contracting with you to undertake medical work. (b) any prospective employer (at the time of application). Unless you appeal against this direction, the period of conditional registration for 18 months will take effect 28 days from the date when written notice of this decision is deemed to have been served upon you. A note explaining your right of appeal will be sent to you. Before the end of the period of conditional registration, a Fitness to Practise Panel will review your case. A letter will be sent to you about the arrangements for the review hearing. Shortly before the date of a review hearing, you will be invited to provide to the General Medical Council the names of any professional colleagues or person of standing from whom the General Medical Council may obtain information regarding their knowledge of your conduct since this hearing. The papers which the Panel will expect to have in advance of the review hearing should provide evidence that you have complied with these conditions. These should include: 1. A statement from yourself explaining the steps that you have taken to comply with these conditions. 2. A report from your workplace supervisors (which includes comments on your conduct and probity) 3. Results of your annual workplace appraisals. 4. Details of all posts you have undertaken.”

The Issues in this Appeal

[18]In brief the Appellant asserts that in the circumstances the Panel was not entitled to conclude in December 2005 that there was impairment and if it was, the conditions imposed were excessive, insufficiently reasoned, and in so far as the Panel imposed them because it considered that he was likely to have become de-skilled, this was unfair and unexpected and contrary to the consistent evidence before it.

[19]Ms. White for the GMC opposes those submissions, and reminds me that although this is an appeal by way of re-hearing to this court under s.40 Medical Act 1983 as amended, the authorities indicate that the court should not interfere with the professional judgments of the panel unless there was some form of breach of legal principle: R (Campbell) v GMC

[2005] EWCA Civ 250

[2005] 1 WLR 3488

[23] and Raschid v GMC

[2007] EWCA Civ 26

;

[2007] 1 WLR 1460

at [19]-[20].

The legal context for the appeal

[20]From a perusal of these and related authorities there is no doubt that while the appellate court has a judgment of its own to exercise, where the Panel has properly directed itself to the relevant issues on evidence and made findings of fact that it was entitled to make, this is a distinctly secondary one. Particular weight should be accorded to the assessments of the panel: both because it has the infinite advantage of making its assessment having seen the witness give evidence, and also because it is the expert body better placed than the court as to what standards should be expected of a professional practitioner and what conditions will be useful and appropriate to ensure that an errant practitioner meets or maintains those standards in the future.

[21]These conclusions are fortified by the underlying regime for review where a past finding of misconduct has been upheld. The Medical Act 1983 as amended provides so far as is material as follows in s.35D :

“(1) Where an allegation against a person is referred under section 35C above to a Fitness to Practise Panel, subsections (2) and (3) below apply. (2) Where the Panel find that the person’s fitness to practise is impaired they may, if they think fit— (a) except in a health case, direct that the person’s name shall be erased from the register; (b) direct 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 (c) direct that his registration shall be conditional on his compliance, during such period not exceeding three years as may be specified ion the direction, with such requirements so specified as the Panel think fit to impose for the protection of members of the public or in his interests. (3) Where the Panel find that the person’s fitness to practise is not impaired they may nevertheless give him a warning regarding his future conduct or performance. (4) Where a Fitness to Practice Panel have given a direction that a person’s registration be suspended— (a) under subsection (2) above; …… Subsection (5) below applies (5) In such a case, a Fitness to Practise Panel may, if they think fit— (a) direct that the current period of suspension shall be extended for such further period from the time when it would otherwise expire as may be specified in the direction; (b) except in a health case, direct that the person’s name shall be erased from the register; or (c) direct that the person’s registration shall, as from the expiry of the current period of suspension, be conditional on his compliance, during such period not exceeding three years as may be specified in the direction, with such requirements so specified as the Panel think fit to impose for the protection of members of the public or in his interests. but, subject to subsection (6) below, the Panel shall not extend any period of suspension under this section for more than twelve months at a time. ...... (11) Where a direction that a person’s registration be subject to conditions has been given under— (a) subsection (2), (5) or (8) above; or (b) rules made by virtue of paragraph 5A(3) of Schedule 4 to this Act, subsection (12) below applies. (a) except in a health case, direct that the person’s name shall be erased from the register; (b) direct 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 (c) direct that his registration shall be conditional on his compliance, during such period not exceeding three years as may be specified ion the direction, with such requirements so specified as the Panel think fit to impose for the protection of members of the public or in his interests. (a) under subsection (2) above; Subsection (5) below applies (5) In such a case, a Fitness to Practise Panel may, if they think fit— (a) direct that the current period of suspension shall be extended for such further period from the time when it would otherwise expire as may be specified in the direction; (b) except in a health case, direct that the person’s name shall be erased from the register; or (c) direct that the person’s registration shall, as from the expiry of the current period of suspension, be conditional on his compliance, during such period not exceeding three years as may be specified in the direction, with such requirements so specified as the Panel think fit to impose for the protection of members of the public or in his interests. (a) subsection (2), (5) or (8) above; or (b) rules made by virtue of paragraph 5A(3) of Schedule 4 to this Act, subsection (12) below applies. (12) In such a case, a Fitness to Practise Panel may, if they think fit – (a) except in a health case, direct that the person’s name shall be erased from the register; (b) direct that the person’s registration in the Register shall be suspended during such period not exceeding twelve months as may be specified in the direction; (c) direct that the current period of conditional registration shall be extended for such further period from the time when it would otherwise expire as may be specified in the direction; or (d) revoke the direction, or revoke or vary any of the conditions imposed by the direction, for the remainder of the current period of conditional registration. But the Panel shall not extend any period of conditional registration under this section for more than three years at a time.”

[22]From that scheme it appears that once the Panel have found impairment by reason of misconduct pursuant to s.35C (2)(a) and have for that reason applied the sanction of suspension under s.35(D)(2)(a), then the Panel “may if they think fit” apply one of three sanctions specified under s.35D (5). There does not appear to be a statutory requirement for a fresh finding of misconduct, and I reject a submission made by Mr. Kellar in the course of this appeal, that conditions could only be imposed where the Panel was satisfied beyond reasonable doubt that the misconduct or fresh basis for the impairment continued at the date of the review.

[23]The statute is to be read together with the 2004 Rules (cited [12] above) and Rule 22 a) to i) makes clear that there is an ordered sequence of decision making, and the Panel must first address whether the fitness to practice is impaired before considering conditions. In my judgment, the statutory context for the Rule relating to reviews must mean that the review has to consider whether all the concerns raised in the original finding of impairment through misconduct have been sufficiently addressed to the Panel’s satisfaction. In practical terms there is a persuasive burden on the practitioner at a review to demonstrate that he or she has fully acknowledged why past professional performance was deficient and through insight, application, education, supervision or other achievement sufficiently addressed the past impairments.

[24]This is the point made in the Indicative Sanctions Guidance for Fitness to Practice Panels published by the GMC in April 2005. Following headings titled Impaired Fitness to Practice, Public Interest, the Guidance proceeds to address Sanctions in general and the sanction of suspension in particular. There is then a sub-heading titled Review Hearings where it states: “31. Where the panel decides that a period of conditional registration or suspension would be appropriate, it must decide whether or not to direct a review hearing immediately before the end of the period. The panel must give reasons for its decision so it is clear that the matter has been considered and the basis on which the decision has been reached. Where a review hearing is to be held the panel must make it clear what it expects the doctor to do during the period of conditions/suspension and the information s/he should submit in advance of the review hearing. This information will be helpful both to the doctor and to the panel considering thematter at the review hearing. 32. It is important that no doctor should be allowed to resume unrestricted practice following a period of conditional registration or suspension unless the panel can be certain that he or she is safe to do so. In some misconduct cases it may be self evident that following a short period of suspension, there will no value in a review hearing. In most cases, however, where a period is suspension is imposed and in all cases where conditions have been imposed the panel will need to be reassured that the doctor is fit to resume practice either unrestricted or with conditions or further conditions. The panel will also need to satisfy itself that the doctor has fully appreciated the gravity of the offence, has not re-offended, and has maintained his or her skills and knowledge and that patients will not be placed at risk by resumption of practice or by the imposition of conditional registration”. (emphasis supplied)

[25]The Indicative Sanctions were provided to the Appellant before the hearing in December 2005 and would be familiar to his advisers. The terms of para 32 were emphasised at the second hearing by counsel for the GMC. Mr. Kellar submits that para 32 is included in the section under sanctions and can only be applicable when the Panel has found that fitness to practise is still impaired under Rule 22.

[26]In my judgment, consistent with the statutory scheme outlined above, this Guidance is intended to apply at reviews and will therefore have relevance as to the Panel’s finding whether fitness to practice remains impaired following a period of suspension. Doubtless, the Guidance could incorporate the Rule 22 (f) stage of the process more explicitly and I certainly accept that the Panel cannot proceed from the historic fact of suspension directly to what further sanction may be necessary. The court is in no doubt, however, that at both hearings the Appellant would or should have been aware of the need for the Panel “to be reassured that the doctor is fit to resume practice whether unrestricted or with conditions” and will need “to satisfy itself that the doctor has fully appreciated the gravity of the offence, has not re-offended, and has maintained his or her skills or knowledge”. Equally at a review he will have been informed what he has to achieve by information provided previously. The decision on impairment.

[27]Mr. Kellar submitted that the December 2005 decision was flawed because:-a. continued impairment was confined by the Panel’s decision to the continued lack of insight into insecure storage of controlled or other prescribed drugs;

b. the decision was based on ambiguous or un-straight forward answers given by the Appellant when giving evidence and answering questions;

c. the Panel had failed to assess those answers in the light of the recognised need for caution in drawing adverse inferences against those for whom English is a second language and from cultures where methods of expression and emphasis may be different;

d. some of the answers relied on were in response to questions about the Appellant’s attitude at the time of the conduct or the 2003 disciplinary proceedings (where he did not admit all of the charges, notably those relating to retention of the Maidstone prescription and the possession of the drugs ) while what counted was his attitude in December 2005;

e. in parts of his evidence the Appellant had stated that he recognised that all the conduct admitted or proved against him was unprofessional and any ambiguity in demonstrating such insight could not meet the high standard of “impairment” of conduct as indicated in the Guidance and the authorities on the point.

[28]I have reviewed the transcript of the proceedings carefully in the light of these submissions and Ms. White’s response. It is not necessary to prolong this judgment by reciting the extracts on which either side relied. In the end I am satisfied that this Panel was entitled to conclude in December 2005 that it was not satisfied that the Appellant had fully addressed his former lack of insight into the nature and potential consequences of his conduct, and it did so without misdirection or taking unfair advantage of any deficiencies or cultural characteristics in the Appellant’s communication skills.

[29]The Panel investigated with the Appellant his insight into his past conduct and particularly his insight into the conduct that he did not admit at the disciplinary hearing but was found proved against him. In my judgment it was perfectly entitled to reach the conclusion that it did and gave sufficient reasons for those conclusions. The assessment of the Appellant’s evidence taken as a whole was very much for the Panel who heard and saw him and cannot be recreated by the text of the exchanges alone.

[30]In particular, Ms. White was entitled to point out as factors of substance that in answers to questions from the Panel, the Appellant indicated:-a. that he had prescribed medicines for his family from the hospital pharmacy in Saudi Arabia although this was contrary to good UK practice;

b. that he had not admitted the drugs possession offences as professional misconduct because doctors were entitled to possess drugs, without immediately explaining that he recognised such a belief as applied to the drugs in his possession in the circumstances he had described was fundamentally misconceived and presented real dangers to patients and public alike;

c. that his testimonials from Saudi Arabia were from his peers and included nothing by way of assessment reports from his employer, or an audit of his practices, achievements and any supervisory or regulatory regime to which he was subject, despite the task he knew or ought to have known that he faced;

d. the very limited nature of the undertaking offered by the Appellant to the Panel, was itself an indication of the degree of his insight into what he had to address and how, and an undertaking merely not to transgress again in the future was not the same as recognising that professional standards required more by way of confidence in sustained and verifiable delivery of best practice;

e. the Panel was entitled to treat the Appellant’s account with caution, as a practitioner who had admitted serious dishonesty with respect to his practice in the past and had therefore forfeited the presumption of trust and probity that the public and fellow professionals should be expected to place in him, and the persuasive burden on him to satisfy was so much the greater.

The Conditions imposed

[31]Mr. Kellar then submitted that even if the Panel were entitled to conclude that fitness to practice remained impaired the severe restrictions applied in May 2006 were disproportionate and therefore wrong in law because:-a. they went beyond what was asked for by the GMC as an alternative to its prime submission of continued suspension, and included restrictions on every aspect of his clinical practice and employability, they had not been intimated by the Panel and it was wrong to impose them without an opportunity afforded to address their propriety in the particular case;

b. the conditions imposed were in many respects much more far reaching than the restrictions specifically related to drug handling imposed in October 2002, although Mr. Justice Newman had recognised that those conditions would effectively have prevented the Appellant from taking employment in the UK, and it would be wrong in principle to impose conditions that had this effect;

c. part of the reasons given by the Panel for imposing the conditions was the de-skilling of the Appellant because he had not practised in the UK for some four years and this was both unfair because it had not been raised as an issue and was contrary to the evidence of satisfaction with his clinical skills until 2002, satisfaction with his skills since then in Saudi Arabia and the Panel’s acceptance that he had kept up to date with clinical developments in his field of practice.

[32]Connected to the first and second of these submissions, Mr. Kellar sought to adduce at the proceedings fresh evidence in the form of a report from Mr. Ian Johnston (Consultant Physician and Royal College of Physicians regional adviser for the Mid Trent Region). Mr. Johnston’s report sought to assess the employment prospects of the Appellant in the UK under the conditions imposed by the Panel, particularly the restriction of employment to NHS Posts only, to training or supernumerary posts and the prohibition of short term locum posts. The report was dated 21st January 2008 and the hearing of this appeal had been listed for some time for the 24th January 2008. Mr. Kellar explained that he had been acting pro-bono throughout and had no instructing solicitors or resources to search for an appropriate expert and one had not been found until December 2007.

[33]Ms. White indicated that the contents of the report were disputed, its admission was opposed and would cause her to apply for an adjournment. The court was already very concerned as to why appellate proceedings had taken nearly two years to list from the decision of the Panel. This was in notable contrast to the first appeal before Newman J. heard within four months of the Panel’s decision. Such extensive delays are completely unacceptable in this area of the Administrative Court’s jurisdiction and have the potential to place more than one public authority in breach its statutory obligation to secure respect for the Appellant’s human rights. The appeal was all part of the determination of his right to his practice as a doctor and should therefore have been concluded within a reasonable period of time (see

Article 6 European Convention

Human Rights taken together with Protocol 1).

[34]I refused the application to admit the fresh evidence because:-a. the admission of fresh contested evidence is very much the exception in s.40 appeals and would require compelling justification (see Watson v GMC

[2006] EWHC 18

Admin 19th January 2006 (unreported) Collins J.[11]- [13]);

b. the best evidence of the impact of the conditions would have been the Appellant’s attempting to find UK employment or seeking advice from a Postgraduate Dean or other qualified person but he had not done so;

c. the evidence could plainly have been obtained and placed before the GMC for comment and response long before now and might well have triggered a discretionary review of the conditions and an examination of the accuracy of the assertions therein;

d. although the Appellant may not have known the precise conditions that the Panel were minded to put in place he must have been aware of the very real likelihood that as the alternative to continued suspension stringent conditions of practice could be applied and had ample time to consider the impact of any before the hearing in May 2006 ;

e. the court had its own responsibility to ensure that nothing should be done to contribute to further delay in the determination of this appeal provided that there was no countervailing imperative consideration of fairness, and there was none in refusing this application.

[35]Many of Ms. White’s submissions on the first issue, were carried over to her response to Mr. Kellar’s submissions on the second. Further Ms. White submitted that all the conditions imposed on the Appellant were standard conditions drawn from the conditions bank available to panels and they had the common themes of ensuring that a return to practice in the United Kingdom took place against a structured framework of supervision of performance and objective peer review of his acknowledged insights into past defective performance. It is one thing to say that lessons have been learned and future practice will meet all required standards, it is another to satisfy employers and supervisors that this has been achieved.

[36]I entirely accept that the undertakings offered were insufficient for the Panel to be satisfied that no conditions were required despite the earlier finding of continued impairment. I am further satisfied that there was no obligation on the Panel chair to negotiate a suitable undertaking or indicate what areas the undertaking should cover.

[37]However, I am concerned that some of the conditions seem to go beyond the need to address the impairments that were found to be outstanding in December 2005. Even if the impairment found outstanding by the panel went beyond the specific issue of inadequate storage of controlled drugs, and included the deceptive conduct about prescriptions noted by Newman J. in his judgment, it is not clear how conditions 7, 8, 9 and 10 (see [17] above) restricting future UK employment to NHS hospitals, training or supernumerary posts or restriction of locum posts to those over three months, was necessary and proportionate to any continuing impairment found. The other conditions would have provided for supervision of prescription of medication, a prohibition on personal possession of controlled drugs, general supervision of medical practice by a consultant, and a regular supply of information to the GMC with reports from future employers to be before a future review panel.

[38]I accept that the Panel will have skills in deciding what conditions are necessary beyond the expertise of the court, but they must exercise those skills fairly and give an opportunity for representations to be made on the suitability for this Appellant of particular conditions restricting future employment.

[39]I also note that the panel imposing the suspension in January 2005 had not spelt out precisely what the Appellant needed to do or provide in the future to see whether future suspension and conditions were necessary, and thus the structured approach to conditions and the need for them envisaged in the Guidance at paragraph 31 (above [24]) may have been missing through no one’s fault. Further I note that paragraph 11 to section 3 of the Supplementary Guidance to the Indicative Sanctions Booklet does not suggest that educational training is normally appropriate where past misconduct is based on dishonesty.

[40]Added to these concerns, there is the risk that some of these more extensive conditions were imposed as a result of a perceived need to remedy skills shortage. I can well see how a period of prolonged suspension in an area of medicine where practices and procedures change, may require retraining and supervision during the retraining. But in this case, there has been no gap in practice. After October 2002 the Appellant sought employment abroad and found it in Saudi Arabia. He was not asked to provide an employer’s report on his progress or evidence of the professional standards operated in Saudi Arabia. There was no suggestion in the December hearing that the Appellant’s skills had faded or that clinical standards applied in his place of work were unexacting. Indeed the Panel specifically commented that the paperwork he had produced addressed his continuing professional development rather than his insight into his historic misconduct. If de-skilling was a reason for the breadth of the conditions imposed as the Panel has indicated it was, then simple fairness in the context of this case required the issue to be flagged up for argument so submissions could be made about it.

[41]The general position is accurately summarised in Fordham “Judicial Review Handbook” (4th Edition) at 60.1 and 60.7 where it is said that the common law imposes minimum standards of fairness and a right to make informed representations. I accept that the legislator intends that the Rules provide the basic framework within which fairness is achieved, but common law assumptions of fairness will not be lightly assumed to have been excluded by the Rules and a fair hearing consistent with the scheme of the Rules could and should be achieved by appropriate indications of what the issues are and how they should be addressed.

[42]I reject the submission that a detailed account of proposed conditions needed to be given in advance or notice of a provisional decision first be given. I also reject the analogy advanced by Mr. Kellar with the requirements of fairness imposed on the court when considering an application for an anti-social behaviour order (see C v Sunderland Youth Court

[2003] EWHC 2385 (Admin)

9th October 2003 at [31]).

[43]Ms. White submits that any problems with over extensive conditions could be addressed in a review under Rule 21. That may be the case but as the conditions were suspended pending the determination of this appeal they were not in force for the purpose of a review until this appeal was determined, and the review is discretionary rather than entitlement.

[44]Ms. White further submits that the “un-workability” of the conditions is disputed and should not be the basis of any appeal to this court as it is not evidentially founded and the best evidence would be the results of applications from the Appellant. I accept that there is no evidence that the conditions imposed would result in no offer of any employment being made, despite the fact that they were in some respects more extensive in scope than the conditions limited to drug prescriptions that tended to have that effect. I note however that section 3 of the Supplementary Guidance enables the Panel itself to make a referral to of the case to a Postgraduate Dean and paragraphs 22 and 30 caution against imposition of conditions that would make it impractical or difficult for a doctor to retrain.

[45]I recognise the difficulty facing the Panel in this case, in that a finding of misconduct by dishonesty is normally sufficient for the sanction of erasure, but that sanction was considered disproportionate in this case. The Panel had an invidious choice between continued suspension and acceptance of undertakings, neither of which it considered appropriate. Conditional registration was very much a third option, and was not explored in detail at the hearing.

[46]A doctor does not need retraining or even supervision to ensure that he or she acts with scrupulous honesty in the future and to ensure that the trust which the public are entitled to assume should be placed in a medical practitioner is justly earned. The areas of impairment found in the December decision, were in respect of his acknowledgement of the significant departures from good practice for self-prescribing a large volume of medication and being prepared to keep a very large number of controlled drugs in insecure conditions where they may have represented a danger to the public. Structured management and supervision on these issues and general reports on progress as an employee are all appropriate tools in the progress from suspension to unrestricted practice. However, despite the able submissions advanced by the Respondents to this appeal, I remain concerned at some of the conditions imposed on the Appellant and the reasons for imposing them. I am further concerned at the passage of time since the May 2006 hearing the final disposal of this appeal.

[47]I have no doubt that it is not for this court to substitute such conditions as it thinks fit. In the end I have concluded that the appropriate course in this case is to allow the appeal to the limited extent of setting aside conditions 7 to 10 and remitting the case to a further Panel of the GMC to conduct a hearing in the light of any updated evidence presented by the Appellant as to whether those conditions were necessary in his particular case or what the effect of imposing them would be. Such evidence may include input from a Postgraduate Dean, Mr. Johnston’s report, and any information from the Appellant’s Saudi employers as to his performance and progress as a doctor since 2003 and the professional standards that have been applied to him abroad.

[48]All the other conditions seem to follow from the concerns of the Panel and remain in force. The remitted appeal could also be the occasion for the review of any such conditions that the Appellant wishes to dispute as a matter of present need, although it should be determined promptly

Cited in 13 later judgments

and 4 more of the most senior