Khan, R (on the application of) v The General Medical Council [2008] EWHC 3509 (Admin)

Case No CO/364/2008

[2008] EWHC 3509 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Friday, 17th October 2008

Strand

London WC2A 2LL

B e f o r e:

MR JUSTICE STADLEN

Between

THE QUEEN ON THE APPLICATION OFClaimant

AMIR MAQBUL KHANClaimant

Between

THE GENERAL MEDICAL COUNCILDefendant

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Alison Foster QC (instructed by Anthony Foley Solicitors) appeared for Claimant

Pushpinder Saini QC (instructed by the General Medical Council) appeared for Defendant

J U D G M E N T

[1]MR JUSTICE STADLEN: This is an appeal brought by Mr Amir Maqbul Khan under section 40 of the Medical Act 1983 (as amended) against decisions made by a Fitness to Practise Panel ("the Panel") of the General Medical Council at the conclusion of a fitness to practise hearing that occurred between 10th and 14th December 2007.

[2]The decisions and the hearing arose out of an application made by Mr Khan for a job in Merseyside in 2003 as an orthopaedic surgeon.

[3]Mr Khan, who was born in 1969, is a physician who qualified as a fellow of the Royal College of Surgeons in Ireland, an MSc in England, a medical doctor ("MD") in United States of America, and an MBBS in 1995 in Punjab. It was submitted on his behalf by Miss Foster QC that he is a doctor held in high regard for his clinical, personal and other abilities, as appears from what she described as glowing references, which were before the Panel and are before the court. I accept that submission, having read those references. He is currently a fellow at the Albert Einstein College of Medicine in New York, withUS Board certifications in both internal medicine and pulmonology.

[4]In respect of the application that Mr Khan made in June 2003, he was required to submit an application form and a curriculum vitae. It was his case before the panel hearing that he had overlooked the date and, realising only on 10th June 2003 that the deadline was 12th June 2003, in a panic he enlisted the help of his brother and his wife for the purpose of filling out the application. He said that he dictated parts of it while his brother and his wife took turns in typing it out. He said that he signed, but did not check, the application form, and that additions were made to his CV which, in addition to the application form, were not checked for errors by him.

[5]It was accepted by Mr Khan, in front of the Panel and in front of me, that both the application form and the CV, but principally the application form, contained a plethora of errors. It was badly presented, inaccurate, and, on his own admission, capable of misleading in parts.

[6]One of the striking features of those documents is that certain of the errors were manifest either on their face or by reference to obvious inconsistency with other entries. An example is that he described a post at the Veteran Affairs Hospital and the Hospital for Special Surgery as lasting from July 2003 to July 2003. Another example is that he recorded employment at Broomfield Hospital, Chelmsford as having taken place from July 2003 to January 2003.

[7]Mr Khan was required, as were all candidates for the post, to present his certificates before the interviews, which in his case occurred on 18th July 2003, to the university. In addition, it is accepted that he took his complete portfolio, containing published papers, submitted papers, papers in preparation and manuscripts in their original format, to the interview, even though it was not a requirement, and made them available to the university.

[8]The application was unsuccessful. In the course of the application, some of the errors were referred to.

[9]In August 2003, in response to an inquiry by Mr Khan as to why he had not got the position which he had thought that he was well qualified for, and in respect of which he had entertained some confident optimism, he received an e-mail by way of explanation dated 5th August 2003 which read as follows:

"Thank you for your e-mail. We use a score for the appointment of SpRs at the interview. Your score was the lowest achieved by all interviewed. Your performance overall was extremely poor. The interview panel's opinion was that you did notanswer any of the questions properly. The interviews were highly competitive and the appointed candidates were all deemed to be the best on the day. I cannot help you further. Yours sincerely, Simon P Frostick."

[10]I was told by Miss Foster, and of course I accept, that such was Mr Khan's surprise and disappointment, both at not getting the position, and at the terms of that e-mail, that he put in train inquiries designed to elicit whether his failure had been the result of discrimination. That commenced in October 2003, but was abandoned in December 2003.

[11]It appears that that may have had the undesired collateral effect of stirring up a hornet's nest. Be that as it may, the next thing that happened was that, as long after the interview as April 2006, the Liverpool Deanery, which is the name of the body who conducted the interview, and to whom the papers were sent, made a complaint to the General Medical Council arising out of the application form and the curriculum vitae, which led, on 15th May 2006, to the General Medical Council formally putting allegations to Mr Khan, and, on 2nd April 2007, to the General Medical Council deciding to refer the case to a Fitness to Practise Panel. On 7th November 2007, there was notice of a hearing which took place between 10th and 14th December 2007.

[12]I was told by Miss Foster that initially the communication to Mr Khan notifying him of the allegations did not include any allegation of dishonesty. However, by the time of the hearing, the matter had evolved to the point where there was a very large number of allegations in respect of individual entries on the application form and/or the CV to the effect that they were not only inaccurate but also misleading and dishonest.

[13]When the matter was canvassed before the Panel, counsel for the GMC described Mr Khan's application as "shambolic" and "a litany of errors". It would be difficult to argue with those descriptions and Miss Foster, on behalf of Mr Khan, did not seek to argue with those descriptions. However, in my judgment what is plain is that it is very difficult indeed to see why, at any rate the majority of those allegations, were ever cast in terms of dishonesty. I say that because, as appears when one looks at the detail, in respect of many of those entries, the error, which is undoubted, is either on its face incapable of having been correct, and obvious to any reader as being incorrect, and therefore not something that any rational person, however dishonest, could have thought would lead to anybody being deceived; but also, in addition, contained obvious inconsistencies with other entries, in many cases very close to the original entry, such that any hope of deception would be wholly fanciful. I will refer to a couple of examples later.

[14]Before the Panel, in respect of a number of the allegations, it was accepted on behalf of Mr Khan, or by Mr Khan, that entries were either inaccurate or misleading or both, in some cases. However, he strongly denied any dishonesty. In the event, the Panel, in its decision, acquitted Mr Khan of dishonesty on all but one allegation. The first and central plank of Mr Khan's appeal to this court is against that single finding of dishonesty.

[15]In addition, there are two particular further findings by the Panel of entries which were held to be misleading, against which findings Mr Khan appeals. The Panel, having found that Mr Khan was guilty of dishonesty on that one allegation, proceeded to conclude that his fitness to practise was impaired and, having decided that his fitness to practise was impaired, the Panel determined, by way of sanction, that in order to send a signal to Mr Khan, the profession and the public that his behaviour was unacceptable, it considered that a period of suspension for 4 months was both appropriate and sufficient.

[16]The appeal is, in addition, against the determination that Mr Khan's fitness to practise was impaired, or is impaired, and also, in the alternative, against the imposition of a 4-month suspension.

[17]The challenge, on appeal, to the finding of dishonesty, was put in a number of ways, but in essence in two different ways which were both cumulative and alternative. The first was based on a challenge to the legal test for dishonesty, which the Panel either did apply or, if it did not apply it, which it raised a question mark as to whether it applied it or whether it was in some way affected by it.

[18]The decision letter dated 17th December 2007, which recorded the decision announced by the chairman on 14th December 2007, indicated that the Panel, in reaching its decision in respect of dishonesty:

"... took account of the Privy Council case of Ghosh reference 1982 Q.C. 1053, 75 CR.App.R.154. Lord Lane concluded that 'there are two aspects to dishonesty: the objective and the subjective, and that the tribunal of fact, in determining the issue, would have to go through a two-stage process before it could convict'. 'In determining whether the (Council in this case) has proved that the defendant was acting dishonesty, a (Panel) must first of all decide whether according to the ordinary standards of reasonable and honest people what was done was dishonest. If it is notdishonest by those standards, that is the end of the matter and the (case) fails.' Furthermore Lord Lane also stated: 'If it was dishonest by those standards, then the (Panel) mustconsider whether the (doctor) himself must have realised that what he was doing was by those standards dishonest. In most cases, where the actions are obviously dishonest by ordinary standards, there will be no doubt about it. It will be obvious that the (doctor) himself knew that he was acting dishonestly. It is dishonest for a (doctor) to act in a way which he knowsordinary people consider to be dishonest, even if he asserts or genuinely believes that he is morally justified in acting as he did.'"

[19]Dealing with the entry which forms the basis of this appeal, the decision letter said the following:

"The Panel has found that the inclusion of the article, 'Does PCL retaining or sacrificing [have] any effect on prosthetic knee movements' in the Journal of Biomechanical Engineering, in Mr Khan's list of publications to be dishonest. He gave a reference date of 10 August 2003 as the date of publication. This article was not published on that date, and he knew when he wrote the application in June 2003 that it would not be published then. The Panel has found that he presented this as a published article with a view to butressing the academic weight of his application."

[20]The Panel then went on, in respect of two further allegations, to say:

"... the Panel has found that the charge satisfies the first test of Ghosh. However... the Panel has not found the second limb of the test in Ghosh to be satisfied. Therefore, the Panel has not found 1(c) and 1(d) to be acts of dishonesty."

[21]It is accepted by Miss Foster that the Ghosh test of dishonesty represents the law and is, on its own, entirely unimpeachable. However, Miss Foster relied on the fact that both in the course of the hearing, and in the decision letter itself, reference was made by the chairman of the Panel to a document called "The Indicative Sanctions Guidance", which contains a test of dishonesty which represents bad law. In the decision letter the following was stated, not in the context of any matter taken into account by the Panel in reaching its findings of honesty or dishonesty, but rather in the context of considering whether Mr Khan's fitness to practise was impaired:

"In deciding whether the matters before it are so serious as to raise the question of impairment, the Panel has considered a number of issues. It has noted the GMC's guidance contained within Good Medical Practice (2001 applicable at the time)which states at paragraph 51 under the heading writing reports, giving evidence and signing documents: 'You must be honest and trustworthy when writing reports, completing or signing forms, or providingevidence 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 theyomit relevant information. If you have agreed to prepare a report, complete or sign a document or provide evidence, you must do so without unreasonable delay.' Mr Kitching, on behalf of the GMC, submitted that there is sufficient evidence to prove that Mr Khan's fitness to practise is impaired by reason of his misconduct. Mr Khan created two documents which were in part inaccurate, in part misleading, and in part dishonest. He signed them to testify to their correctness. It was his responsibility to make sure that these documents were neither inaccurate nor misleading nor dishonest. He failed to do so. Mr Kitching submitted that as a consequence of these actions Mr Khan's fitness to practise is impaired... The Panel has concluded that Mr Khan's misconduct was a clear departure from the standards set out in Good Medical Practice (2001), and that it fell sufficiently below those standards as to render his fitness to practise to be impaired by reason of his misconduct."

[22]At the very conclusion of the hearing, the chairman of the Panel, who had been questioning Mr Khan, said the following:

"Q Can I just stop you there? You do make reference to good medical practice. If we go to paragraph 51, which relates to writing reports, giving evidence and signing documents in Good Medical Practice, the one that was pertinent at the time when this came before the GMC. It says: 'You must be honest and trustworthy when writing reports, completing or signing forms or providing evidence. 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 theyomit relevant information.' You have admitted that you did not take reasonable steps. You have admitted that you signed the document beforelooking at it. You did not take reasonable steps to verify it. You have also made admissions in regard to statements which you made, which were misleading. Can you understand that equipped with this information and with this marked up, highlighted CV and application form, that someone off the street, looking at it, might say that he has failed thesetests of honesty and, therefore, he was being dishonest? Can you see that someone might reach that conclusion with this evidence in front of him?" (Emphasis added).

[23]It was accepted by Mr Saini QC on behalf of the General Medical Council that the extract from the document "Good Medical Practice" which I have cited is incorrect as a matter of law. In particular, the proposition that dishonesty can be established by a failure to take reasonable steps to verify a statement made before a document is signed is plainly bad law. The question, therefore, and the first question that arises upon this appeal in relation to the challenge against the finding of dishonesty, is: what is the impact on that finding of the facts that, first, the chairman, shortly before the end of the hearing, passed that incorrect test to Mr Khan and described it as a test of honesty and asked the question, rhetorically, whether he could understand that someone from the street, looking at Mr Khan's CV and application form, might say that he has failed "these tests of honesty and, therefore, he was being dishonest"?

[24]Mr Saini QC, accepted that the test of dishonesty in the document "Good Medical Practice", which I was told was a document subsequently withdrawn, that was made available to doctors, represents an incorrect legal test of dishonesty. However, he submitted that it is plain from the decision letter that the Panel, in reaching its decision on dishonesty, did not apply that test, but rather applied the test acknowledged by Miss Foster QC to be the correct one, namely the Ghosh test.

[25]In support of that submission, he pointed out, quite rightly, that in rejecting two other allegations of dishonesty, the Panel explicitly did so in their decision letter by reference to the two-stage test in Ghosh, thereby, he submitted, indicating that that was the test which they were applying generally, and, it is to be inferred, also in relation to the one allegation which they found to be proved.

[26]In addition, Mr Saini submitted that the incorrect test to which reference is made in the decision letter, appeared at a later stage of the chain of decision-making which the Panel recorded, namely the stage at which it was deciding whether, having found that he had been dishonest, his fitness to practise was impaired.

[27]I have no doubt whatsoever that it would be wholly wrong, unsatisfactory and unfair for a finding of dishonesty to stand against the background of the circumstances to which I have referred. The first passage, which was where the chairman was questioning Mr Khan, demonstrated that the chairman was plainly labouring under a misapprehension that the paragraph 51 test was either "the" or at any rate "a relevant part of" the test of dishonesty. Nothing is done to extinguish that inference by the fact that in the section of the decision seeking to explain how the Panel reached its decision that Mr Khan's fitness to practise was impaired, there was a further reference to paragraph 51 and an explicit linking of that decision with that test in paragraph 51, as appears from my previous citation. Having said that, in deciding whether the matters were so serious as to raise the question of impairment, the Panel has decided a number of issues, the very next thing that is referred to is the Panel's noting of the incorrect test in paragraph 51. Moreover, the Panel indicated that its conclusion was that Mr Khan's misconduct was a clear departure from "the standards set out in Good Medical Practice (2001), and that it fell sufficiently below those standards as to render his fitness to practise to be impaired by reason of his misconduct", those standards including the incorrect definition of dishonesty.

[28]I entirely accept Mr Saini's submission that as a matter of strict logic, if it were the case that, having found dishonesty without reference to that incorrect test, the Panel went on to apply the wrong test to the question of impairment, that is a matter that would need to be looked at in the context of the challenge to the decision onimpairment, but in my judgment that is an artificially narrow way of approaching the matter.

[29]The answer to the clear inference that from the chairman's question she was labouring under a misapprehension as to the correct test, which Mr Saini advanced, namely that, having been advised by the lawyer advising the Panel, the Panel had in its decision made reference to the correct test, is that it is plain, albeit in a different context, from the fact that the Panel went on to repeat reference to the incorrect legal test in paragraph 51, that the work of the legal adviser had not been wholly successful.

[30]If what had occurred after the conclusion of the hearing was that the adviser had advised the Panel that the test in paragraph 51 referred to by the chairman in questioning was incorrect and that there was a much higher threshold, as laid down in Ghosh, then one would not have expected a reference to the incorrect lower test to have survived and indeed been relied on explicitly as justifying a finding of impairment. It is, in my view, artificial and unrealistic to suppose that it would be safe to assume that the Panel, or the chairman at any rate, having been under the misapprehension that paragraph 51 represented the correct test on dishonesty in her questioning, and having remained under that misapprehension in the context of the Panel's decision on the question of fitness to practise, in-between those two moments had been cured of her misapprehension when it came to making findings of fact on dishonesty and applied the correct test.

[31]In my judgment, at the very lowest, it can be said that the later reference to paragraph 51 in the decision letter shows that the offending paragraph was uppermost in the minds of the Panel when they were considering their decisions and had been discussed by them in their deliberations. There is no satisfactory or conclusive evidence that the patent error of interpretation evident in the chairman's questions to Mr Khan had been corrected by the time paragraph 51 was referred to in the decision, or by the time that the Panel came to consider the question of dishonesty.

[32]One of the difficulties is that it is not possible to interrogate the Panel and ask them what their process of ratiocination was. Justice must be seen to be done, as well as being done, and in my judgment nobody reading the transcript or the decision letter could say with confidence that there is no possibility that, either consciously or indirectly, the Panel was influenced by a misapprehension that paragraph 51 represented some part of the correct legal test of dishonesty. In my judgment, it is likely to a greater or lesser extent, expressly or subliminally, that the chairman, and/or one or more members of the Panel, were influenced by, and applied to a greater or lesser extent, the paragraph 51 test. Even if that is wrong, it is impossible to know whether that did in fact occur. The risk that it occurred, or may have occurred, in my judgment would have made it unfair, wholly wrong and dangerous to allow the decision of dishonesty to stand by reference to the finding of the Panel.

[33]The question arises as to what the consequences of my conclusion are. When this matter adjourned on 25th September, I asked Mr Saini what the GMC's submission would be in the event that the court were to overturn the finding of dishonesty. My recollection, and that of Miss Foster, was that Mr Saini replied that, having regard to the length of time since the alleged offence, or the offences which had been found, that the GMC would not invite me to remit the matter, as it would be within my power to do, to a Fitness to Practise Panel to reconsider the matter again, but that I should consider the matter myself.

[34]At the resumed hearing today, Mr Saini indicated that on that occasion he had said that he had been acting without instructions, that I had asked him to get instructions and that his instructions now were that if the court were to overturn the finding of dishonesty on the ground that I have overturned it on, rather than on the alternative or cumulative ground that it was simply wrong, then, rather than hear it again myself, I should remit it to a Panel. It appears that there may have been some crossed wires. I make no comment of any sort on that. However, in my judgment it would be unsatisfactory and unfair to Mr Khan, and not necessary in the interests of justice or the protection of the public, to which, of course, one has to have regard in this sphere, for the matter to go back by way of remission to a new Panel.

[35]The events in question are now nearly five and a half years old. Mr Khan has had this matter hanging over his head for a very long time and in evidence that was placed before the court, it is apparent that the suspension which has itself been deferred pending this appeal, has had direct adverse effects on his career prospects in the United States, where he is currently practising medicine, and in particular in that a job offer which was made to him has been withdrawn because of the finding of dishonesty and the impairment ruling.

[36]In reaching the decision that it is therefore a matter which I should look at myself, I have taken into account the circumstances of the case, and in particular the nature of the allegation and the nature of the evidence relied on. It is of course axiomatic that in the ordinary course an appellate court, even where, as here, the appeal is by way of rehearing (I shall refer to that in a moment), is always slow to interfere or overturn a finding of fact where it has not had the benefit of hearing oral testimony and seeing the demeanour of a witness, which was enjoyed by the tribunal of first instance.

[37]I am also conscious that, in particular in the context of findings of honesty or dishonesty, an appellate court is particularly slow to substitute its own view for that of the tribunal of first instance, particularly where it has not enjoyed the benefit of oral testimony. However, as will appear, this is a rather unusual case, in my judgment, because the nature of the allegation of dishonesty is one which appears from the face of the application form. The answers to it, provided by Mr Khan, themselves appear on the face of the application form, the CV and the admitted background of the job application, including the submission of certificates in advance and the presentation, in his portfolio, of the articles relied on by him in his application and CV.

[38]It was accepted by Mr Saini that, absent any oral testimony, the relevant entry, to which I shall refer, was one in which it could equally be inferred that the explanation for the admitted mistake was innocent rather than dishonest.

[39]Mr Saini, when defending the substance of the finding of dishonesty from the challenge by Miss Foster in her alternative ground (that it was wrong), relied very heavily -- indeed, in my judgment it was his main point -- on what he submitted were evasive answers given by Mr Khan when asked about it at the hearing. Thus, he said, this was a case where the Tribunal was entitled to form its view of Mr Khan's demeanour and, therefore, would not be an appropriate case for the court either to substitute its own view on the merits for that of the Tribunal or, if, as I have done, the court found that the decision is impugned by the paragraph 51 point, not to remit it, rather than deciding it itself.

[40]I have studied very carefully the transcript of the evidence of Mr Khan on this point, I have studied very carefully the submissions of counsel on both sides and I have studied very carefully the relevant documents. In my judgment this is a case in which there would be no injustice to the General Medical Council if the court were to make its own finding of honesty or dishonesty on this point rather than remit it to a Panel. One has to, in this situation, weigh up all the circumstances: on the one hand, the desirability, in principle, of primary questions of fact being decided by a Panel, but on the other the disadvantages and undesirability of constituting a new Panel so long after the alleged offences. In my judgment, taking all these matters into account, I have no doubt that the right thing to do is for me to consider the question afresh.

[41]The relevant entry appeared on the application form and, before referring to it, I note that on the front page of the application form the following admonitions appear:

"2. DO NOT MAKE ANY REFERENCES TO YOUR C.V. SHORTLISTING WILL BE BASED ON THE APPLICATION FORM ONLY. 3. DO NOT INSERT ANY PART OF YOUR C.V. OR LOG BOOK INTO THE APPLICATION FORM... 6. PLEASE ATTACH ONE COPY OF YOUR CURRICULUM VITAE WITH THE APPLICATION FORM"

. Under the Heading "MEDICAL EDUCATION & PROFESSIONAL QUALIFICATIONS" there was the following admonition:

"Original certificates to be presented at interview. Failure to produc[e] original and copy at interview will mean you will NOT be interviewed"

. It follows that when considering the question of any intention to bolster his prospects by entering a deliberately dishonest and knowingly false entry, one has to approach it on the basis that Mr Khan must be taken to have known not only that his CV would be looked at, or might be looked at, by the panel, or by the deanery, but also one must take into account the fact, to which I have referred, that he himself opted to present his portfolio to the deanery, which included all his published articles and unpublished articles, including the article in question.

[42]Under the heading "PUBLICATIONS" there were five boxes and the rubric was as follows:

"PUBLICATIONS Please list in chronological order with the most recent first. If you have more than five publications, please list the most recent five. Publications only must be in the Vancouver style"

. Within each box there was then provision for filling in the name of the author and the title. There were then two columns, one "Case Report", the other "Full Paper"; under "Status" three options, "Submitted", "In Press" and "Published Work"; under that, the name of the journal; and finally "Full Reference".

[43]Mr Khan filled out all five boxes, but in no case did he circle, in respect of any individual article, whether it was submitted, in press or published work. It was common ground that the words "in press" were meant to refer to an article that had not only been submitted, but had been accepted for publication, but had not yet been published. It was not in dispute, either, that the first four articles which Mr Khan entered were fully published works, that is to say works that had actually been published at the time of interview, or that, in addition to the first four, there were another five articles, which appear in Mr Khan's CV that was attached to the application form that was submitted with the application form. In his CV there was reference to no fewer than five articles, any or all of which would have qualified for entry in this section of publications, and all five would have qualified as fully-published works. That is to say, works which had already been published. I was told that three of them were full academic papers and that two were either case reports or similar short articles.

[44]The fifth entry was in respect of an article, the authors of which were described as Mr Khan, G Bentley and G Blunn, entitled "Does PCL retaining or sacrificing has (sic) any effect on prosthetic knee movements". Neither "Submitted" nor "In Press" nor "Published Work" was circled. The journal was identified as being the Journal of Biomechanical Engineering and the full reference was identified as being 322 (1): 634 10th August 2003. The allegation made, and found to be true by the Panel, was that the combination of not circling the word "Submitted", coupled with the specific reference under the Vancouver style and the date, which of course was in the future at that moment, 10th August 2003, cumulatively constituted a representation that this was an article which, while not actually published -- how could it have been published, since it was in the future -- was nonetheless one which had been accepted for publication and therefore was in the middle category of "In Press". It was not challenged by Miss Foster that that was objectively what the entry represented.

[45]What was found was that not only was this, as was admitted, an inaccurate and incorrect representation, but that it was dishonest. The Panel made an explicit finding in relation to it that:

"... he knew when he wrote the application in June 2003 that it would not be published [on 10th August 2003]. The Panel has therefore found that he presented this as a published article with a view to buttressing the academic weight of his application."

[46]In my judgment, even if I had not found, as I have, that the finding of dishonesty must be quashed by reason of the reference to paragraph 51, that finding is a finding which could not stand. No reasons for the finding were given and no reasons were given for rejecting the submissions which had been made on behalf of Mr Khan as to why that would be an implausible finding.

[47]Literally the very next page of the application form, after that entry, which appears on the top of page 11 of the application form, was a section called "Abstracts". The fourth entry in that category, which Mr Khan said had been entered by his wife and/or brother and/or by himself, was a separate article or abstract entitled "A Cervical Spinal Lesion", which was said to have been published in the British Medical Journal. The full reference given to it was 322 (1): 624 10th March 2001.

[48]There are two aspects of that which are relevant to the issue of whether there was dishonesty. The first is that all the references, bar the date, in both that abstract and the box on the article said to have been dishonest, were identical: 322 (1):634. In my judgment, against a background of a document, an application form and a CV which is littered with obvious errors and sloppy inaccuracies, it is a very strong inference that the explanation for this incorrect entry was that there had been some mistake in filling in the form and that there had been some transposition from one box to another.

[49]Second, and of no less import in my judgment, is the point that in considering whether the correct inference is that there was dishonesty on the part of Mr Khan in seeking to give the false impression that this article had been accepted rather than merely submitted, one has to ask the question: how sensible would it have been, in seeking to practise such a deception, to give a knowingly false reference which was identical to a reference on the very next page, in circumstances where there must have been an obvious risk that anybody reading this application would, or might, notice that the references were identical and therefore that one or other of the references must be wrong? If the intention was dishonestly to represent that this article had been accepted, it would have been a very stupid thing to do to draw attention to that dishonest deception by using precisely the same reference as appeared on another, completely different journal on the very next page.

[50]Moreover, if the intention had been to give the impression dishonestly that this article had been accepted but not yet published, it would again have been a rather stupid thing to do to give a page reference under the Vancouver style to the page in which this was going to appear in a journal in circumstances where it would be, simply as a matter of common sense, rather surprising if a journal which had accepted an article for publication some 3 months down the line had sent it back with the page numbers that it was going to appear in the wider journal, again a matter that would obviously run the risk of raising eyebrows on the part of anybody who read it.

[51]In addition to that matter, the Panel has given no indication of how it dealt with the submission that had been made to it and was repeated in front of me, that the proposition that Mr Khan was dishonestly trying to buttress the academic weight of his application is inconsistent with the fact that he had missed the opportunity of which he could easily have availed himself of filling in that fifth box by reference to any one of the five other articles which had been published and which, it is not challenged by the General Medical Council, could perfectly properly have been entered into that box. Nor, in reaching their conclusion, did the Panel give any indication as to why the submission that it should be inferred from all those other examples that this particular example was itself explicable by an innocent error had been rejected. Nor did the Panel give any reason for holding to its conclusion of dishonesty against the knowledge that the unpublished, but submitted, article in question was in his portfolio and available for inspection, a matter that would have been known to Mr Khan when deciding to practise this deception, as it was found to be.

[52]I point out in passing that there was a typographical or grammatical error in the title, to which I have drawn attention, which of itself would be surprising if this had been the product of cold, calculating dishonesty.

[53]Against all of this background, in my judgment, before one looks at the question of Mr Khan's evidence, the inference is overwhelming that this error was not the product of dishonest intention to deceive, motivated by a desire to buttress his academic standing, but was simply on all fours with the large number of other innocent errors that appear on the face of the two documents.

[54]So far as the impact upon that view the evidence of Mr Khan in the witness box had, or should have had, Mr Saini's submission was that when this error was put to him in questioning, his answers were evasive, and that instead of just accepting and apologising for the error, he made a number of points which were not addressing the sting of the point that was being put to him, and he characterised that evidence as evasive. He said that the evidence did not engage with the thrust of the allegation.

[55]It is, in my judgment, perfectly true that when one reads those passages, Mr Khan does not engage with the thrust of the allegation. However, in my judgment, it is overstating the case to describe those passages as necessarily evasive, not least in the context of a whole series of other answers in his evidence in which he accepted perfectly frankly that he had been not only at error but at fault, both in allowing inaccuracies to enter into the documents, and in failing to check them.

[56]There are all sorts of reasons why, when it is drawn to somebody's attention in the witness box that he made an error that he may not explicitly and openly acknowledge the error, other than the inference being that the explanation is seeking to cover up dishonesty. I bear in mind that there are circumstances in which the question of whether an answer is deliberately evasive so as to disguise dishonesty is a matter that is capable of being one that can only be determined by reference to the demeanour of the witness, but this is, in my judgment, not such a case.

[57]In my judgment, the documents speak for themselves and there is nothing that distinguishes this particular error from a number of other errors which have been either found or admitted, or both, so as to take it out of the category which has been found by the Panel in respect of all other allegations: errors in which the inference to be drawn is an innocent rather than a dishonest one. If one imagines that this case had been put to the Panel on the basis that it had been accepted from the outset that every other entry had been entirely honest and without any intention to deceive or to buttress his standing, in my judgment it is hard to imagine either that the allegation would have been proceeded with by the GMC or, if proceeded with, that it would have led to a finding of dishonesty.

[58]At all events, in my judgment the finding that the motive was a motive to buttress his academic standing is one which cannot stand, both because no sufficient reasons were given for it and because, it is, in my view, unsupported by and inconsistent with the generality of the evidence. I would therefore find that it is wrong, in any event, and for the reasons I have given it would be inappropriate for that matter to be remitted to the Panel. Approaching it, as I now must do, without the benefit of oral evidence, because nobody has suggested that I should have a hearing which involves oral evidence from Mr Khan, I reach the conclusion, without any hesitation, that this was not a dishonest entry.

[59]There is one other matter to which I should refer. There were before me, and there were before the Panel, a number of character references for Mr Khan, and there was one live witness who gave evidence by video link. That was Professor Shim. Professor Shim was the Professor of Medicine at the Albert Einstein College of Medicine where Mr Khan was working, and still is working. He was asked, "can I ask you for your views... of the doctor's integrity and honesty" and his answer was:

"A I am going to talk about the experience that I have over the last two years in practising with him. I cannot say anything about the charges or honesty or dishonesty part... A I have never experienced dishonesty. He is actually a very thorough worker. Actually, all our Fellows are selected members and they take their work excellent (sic)... Q Have you ever had any reason to suspect his honesty or integrity in any of the dealings that you have had with him? A No, sir."

[60]Among his references there were a letter from Professor Shim saying:

"Dr Khan I know in the past 2 yearsis an honest, hard-working, competent, fully committed physician I respect and enjoy working with." "

He is honest and intellectually curious and is quick to search the literature to learn about the case or subject... He is fully committed to the care of our patients who are often indigent and uneducated"; a letter from Assistant Professor of Medicine, Robert Foronjy:

"In summary, Dr. Khan is an excellent physician and he has demonstrated to me that he possesses the character traits, intelligence and dedication needed to provide superlative clinical services in the future"; a letter from Ronald Smith, Co-director of the Cardiothoracic Surgery Intensive Care Unit at the Montefiore Medical Center in New York: "

Dr Khan has shown himself to be a highly ethical, consistent, reliable, and pleasant physician and has always maintained excellent working relationships with his superiors, peers, support staff as well as junior house-staff"; a letter from Assistant Professor Rajat Bhatt from the Health Sciences Centre at the Texas Tech University. "Dr Khan worked closely with me in New York fortwo years and I have known him now for over five years. I can only say that I am astonished that he could be capable of the errors he stands accused of - he was always a meticulous committed professional colleague who was widely seen as ashining example to others... I can also attest that Dr Khan is to his core an extremely honest and moral man - this comes from his deeply held religious beliefs but I believe it is more than that - that he has shown through words and actions thatpracticing medicine is such an honourable and important privilege that his role in promoting the welfare of patients in his care comes above all else"; and finally a letter from Assistant Professor Raghad Said, from the Montefiore Medical Center:

"I have supervised Dr. Khan very closely during his Intensive Care Unit rotation and have been very impressed by his soundintellect, knowledge, honesty and integrity."

[61]In its decision letter, the Panel indicated that it had given careful consideration to all the evidence included in the case, but in its reasoning it did not indicate what weight it had attributed to these glowing references to Mr Khan's integrity. In my judgment, these are very powerful matters that any tribunal should weigh in the balance in considering the plausibility of honesty or dishonesty, and I take them very much into account.

[62]There are two other decisions made by the Panel which are also the subject of factual challenge. The first is in respect of a finding that:

"... in Mr Khan's curriculum vitae his description of himself as 'Mr Amir Khan MD FRCS' was accurate but misleading, insofar as it would suggest to a British reader that his MD was a British higher degree."

This is a reference to the front cover of Mr Khan's CV, which reads:

"Curriculum Vitae of Mr. Amir M. Khan. M.D., F.R.C.S."

[63]This is a finding that has a somewhat bizarre origin in that the complaint, as originally framed by the GMC, was not by reference to that entry on the CV, but rather by reference to an entry in the application form, under the heading of "MEDICAL EDUCATION & PROFESSIONAL QUALIFICATIONS" in which Mr Khan had written under "Qualification/Memberships of Professional Institutes", "MD"; under "Name of Medical School/Institute", "American board of Examinations"; and under "Month and Year of Qualification", "June 2000". The original allegation was that this was misleading, indeed, it was said to be dishonest, because he had in fact only been qualified as an MD since December 2001. But when it came to the hearing, a wholly different point was taken by the Panel itself, of its own motion, and the complaint was not the one made by the GMC, but rather the fact that in the cover sheet of his CV the reference to himself as MD was misleading in that it falsely gave the impression that he had a higher English degree rather than, as was in fact the case, and was accepted by the Panel to be accurate, he was a medical doctor as certified in the United States.

[64]The original allegation tells one a great deal about the very surprising way in which these allegations were put against Mr Khan, because the notion that he can have dishonestly sought to improve his standing by giving the impression that his qualification as an MD went back to June 2000 is undermined by the fact that on page 1 of his CV it is explicitly stated that his MD qualification was obtained in December 2001. It is another example, on all fours, in my judgment, or if not on all fours, very close to the allegation that was found of dishonesty, where the allegedly dishonest inaccuracy or misleading feature was easily demonstrable as being inaccurate by reference to something that appeared elsewhere in the papers.

[65]Be that as it may, the complaint made by, and found by, the Panel of putting in a misleading entry of "MD", in my judgment cannot stand. It is not challenged that it is accurate; American doctors call themselves "MD". It is true that there is in England a higher qualification which is also referred to as "MD", but any notion that the reference on the CV was misleading, in my judgment, is undermined by the fact that on the very next page, first page of the substantive CV, the qualification is described as "M.D. USMLE". That is a reference to the American institute that awarded the MD. It is readily apparent that the reference to MD is not a reference to an English higher qualification, but is simply the standard description of an American doctor. Indeed, Mr Khan made the point that if he had been seeking to pretend, or if it had been intended to give the impression, or if it was objectively misleading by giving the impression that it was an English higher degree, you would have expected it to be after the FRCS rather before, because it would be a later rather than earlier qualification. In my judgment, that finding is plainly wrong and should be quashed.

[66]The second matter is in respect of an entry in the abstracts section of the application form, to which I have already referred. The fourth entry was to a paper to which I have already referred, called "A Cervical Spinal Lesion". The point taken by the GMC, and accepted by the Panel in its decision, was that citing that article as an abstract in the British Medical Journal 2001 was inaccurate. This is on the basis that the article in question was not a shorter version of a longer document, but rather a seven-line entry of a brief case report.

[67]In answer to this Miss Foster, on behalf of Mr Khan, submitted that there is no inaccuracy, because an abstract does not have only to be a shorter version of a longer published article, but can be a free-standing short paper in its own right. In support of that she prayed in aid a letter dated 9th May 2003 to Mr Khan, which refers to abstracts in terms which indicate that there can be either something called an abstract which is a poster, something that would only appear as a poster and, she submits, therefore not an abstract from a longer paper, or something called a "long abstract" to be included in the papers for a conference, which is a different kind of abstract and the more conventionally understood abstract. In addition, it was submitted that there was no expert evidence before the Panel on which it could resolve this issue of fact.

[68]In answer to that, Mr Saini QC submitted that the Panel were themselves experts and it is perfectly obvious that the common understanding of the word "abstract" is a reference to a shorter version of a longer published document.

[69]I have not found this decision an easy one to make, but in my judgment there is force in Mr Saini's submission. In my judgment, the Panel was entitled to take the view that, in a document such as the application form, the invitation to identify abstracts as distinct from publications was intended to be understood as being a reference to a shorter version of a longer document. In those circumstances, in myjudgment, that finding of the Panel cannot be overturned.

[70]Before I turn to the question ofimpairment and sanction, I should add something about the question of authority in relation to the issue of the correct approach on disturbing a finding of dishonesty. Reference was made to the decision of the House of Lords in Watt or Thomas v Thomas

[1947] AC 484

, the headnote of which is in the following terms:

"When a question of fact has been tried by a judge without a jury and it is not suggested that he has misdirected himself in law, an appellate court in reviewing the record of the evidence should attach the greatest weight to his opinion, because hesaw and heard the witnesses, and should not disturb his judgment unless it is plainly unsound. The appellate court is, however, free to reverse his conclusions if the grounds given by him therefor are unsatisfactory by reason of materialinconsistencies or inaccuracies or if it appears unmistakably from the evidence that in reaching them he has not taken proper advantage of having seen and heard the witnesses or has failed to appreciate the weight and bearing of circumstances admitted or proved." (Emphasis added).

[71]The question of what is the correct approach in deciding whether to overcome a finding of honesty in an appellate court such as this of course only arises insofar as Miss Foster's second challenge to the finding is concerned, namely that based on the submission that the finding of dishonesty was wrong. It does not arise in relation to the primary challenge, which I have also accepted, namely that the finding was undermined by the application, or the possible application, of the wrong legal test; nor does it apply to the approach that I have to take when deciding the matter afresh, as I have to do in the light of the decision which I have made that it is not appropriate that I should remit the case to a new Panel for a new hearing but should make a new finding myself, because, having found that the original decision was wrong, as being undermined by the possible application of the wrong legal test, the question has to be looked at afresh, either by me or by a new Panel. So what I am saying now applies only to the alternative submission, which I have accepted, that the finding of dishonesty is in any event wrong.

[72]The words emphasised in the headnote indicate that one of the bases upon which an appellate court is free to reverse the conclusions of the tribunal of first instance is where that tribunal has failed to appreciate the weight and bearing of circumstances which are admitted or proved. In my judgment, for the reasons I have given, that is a circumstance which applies in this case. That is a reference to a passage from the speech of Lord Macmillan in which he said as follows at page 491:

"So far as the case stands on paper, it not infrequently happens that a decision either way may seem equally open. When this is so, and it may be said of the present case, then the decision of the trial judge, who has enjoyed the advantages not available to the appellate court, becomes of paramount importance and ought not to be disturbed. This is not an abrogation of the powers of a court of appeal on questions of fact. The judgment of the trial judge on the facts may be demonstrated on the printed evidence to be affected by material inconsistencies and inaccuracies or he may be shown to have failed to appreciate the weight or bearing or circumstances admitted or proved or otherwise to have gone plainly wrong."

[73]It is common ground that an appeal such as this arises by virtue of the relevant practice direction as a re-hearing. In the case of Meadow v General Medical Council

[2007] QB 462

, Auld LJ, in a passage with which Sir Anthony Clarke MR and Thorpe LJ agreed, referred to the test applied by Collins J in the court below. In that passage Auld LJ referred to the test applied by Collins J in these terms:

"119. The Judge dealt shortly with the test for the High Court on an appeal under section 40. He noted, at para 31, that such an appeal is not limited to a review, but said that the court would not interfere unless persuaded that a decision, whether in respect of a finding of misconduct or of sanction was 'clearly wrong', the test with which, without further gloss, he said he would apply."

At paragraph 125, Auld LJ held:

"For the following reasons, I can see no basis for faulting Collins J's simple expression of the test, save that I doubt whether the adverbial emphasis of 'clearly' adds anything logically or legally to an appellate court's characterisation of the decision below as 'wrong'."

Auld LJ added:

"127... whether the appeal is by way of 'review' under CPR r 52.11(1) or a rehearing under CPR r 52.11(1)(b) by reason of the Practice Direction, the material test for quashing a decision of the FPP is whether, as provided in CPR r 52.11.3(a), it is 'wrong'."

[74]Auld LJ went on to hold, referring to the judgment of May LJ in EI Dupont de Nemours & Co v ST Dupont (Note)

[2006] 1 WLR 2793

, paragraphs 92-98:

"128... even when a review is a full rehearing in the sense of considering the matter afresh, if necessary by hearing oral evidence again and, even admitting fresh evidence, the appellate court should still, said May LJ, at para 96, 'give to the decision of the lower court the weight that it deserves'. This elasticity of meaning in the word 'rehearing' in CPR r 52.11 should clearly apply also to the same word in the Practice Direction. It all depends on the nature of the disciplinary tribunal, the issues determined by it under challenge and the evidence upon which it relied in doing so, how the High Court should approach its task of deciding whether the decision of the tribunal was, as provided by CPR r 52.11(3)(a) 'wrong', and, whether on the way to reaching such a conclusion, it draws, pursuant to CPR r 52.11(4) 'any inference of fact which it considers justified on the evidence'."

[75]In my judgment, answering the question of whether the decision of the Panel on the question of honesty was wrong, the answer is, drawing inferences of fact which I consider to be justified on the evidence, that it was. In saying that, I am conscious also of the guidance given by the Court of Appeal in the decision of Raschid v General Medical Council

[2007] 1 WLR 1460

. Laws LJ, in considering how the jurisdiction should be exercised by the High Court under the new statutory regime held:

"16. In these circumstances it seems to me to be clear that we should follow the guidance given in the cases decided before the change in the appeal system effected on 1 April 2003. First, the Privy Council is of course a source of high authority; but secondly, we are in any event considering an effectively identical statutory regime. As it seems to me there are in particular two strands in the relevant learning before 1 April 2003. One differentiates the function of the Panel or committee in imposing sanctions from that of a court imposing retributive punishment. The other emphasises the special expertise of the Panel or committee to make the required judgment."

[76]Laws LJ further held:

"19... As it seems to me the fact that a principal purpose of the Panel's jurisdiction in relation to sanctions is the preservation and maintenance of public confidence in the profession rather than the administration of retributive justice, particular force is given to the need to accord special respect to the judgment of the professional decision-making body in the shape of the Panel. That I think is reflected in the last citation I need give. It consists in Lord Millett's observations in Ghosh v General Medical Council [2001] 1 WLR 1915, 1923, para 34: 'the board will afford an appropriate measure of respect to the judgment of the committee whether the practitioner's failings amount to serious professional misconduct and on the measures necessary to maintain professional standards and provide adequate protection to the public. But the board will not defer to the committee's judgment more than is warranted by the circumstances.' 20. These strands in the learning then, as it seems to me, constitute the essential approach to be applied by the High Court on a section 40 appeal. The approach they commend does not emasculate the High Court's role in section 40 appeals: the High Court will correct material errors of fact and of course of law and it will exercise a judgment, though distinctly and firmly a secondary judgment, as to the application of the principles to the facts of the case."

[77]A question has been raised, not in this case, but on other authorities as to whether there is any gap between the approaches laid down by the Court of Appeal in those two authorities, having regard in particular to the reference by Laws LJ to the judgment exercised by the High Court as being distinctly and firmly a secondary judgment. Nothing on this case turns on whether there is any such a gap and, if so, of what it consists. I note that in the Meadows case Thorpe LJ stated:

"280. Whilst the Privy Council was, and now the Queen's Bench Judge is, free to upset the decision of the panel if clearly wrong, it has always been recognised that the appellate court must accord due deference to the evaluation of a panel substantially composed of doctors for the obvious reason that they are better placed to make a peer judgment. There can be no doubting that proposition where the charge before the panel relates to clinical work. But where the only charge relates to the doctor's evidence given during legal proceedings there is no similar foundation for deference."

[78]That observation has some significance in the current context, because on the question of whether the relevant entry in respect of the publication was honest or dishonest, there is not, in my judgment, any aspect of that decision which turns on any medical expertise, whether related to clinical work or otherwise. It is a classic case with which the courts are confronted all the time, and which could occur as well in a non-medical context as a medical context, namely as to what inference one draws from an error in a document, and whether the innocent inference is to be drawn or a dishonest inference is to be drawn.

[79]Insofar as the decision in this case turned solely on whether, in my judgment, the decision of the Panel that the relevant entry was dishonest was wrong, in my judgment it was wrong and I would so hold. As I have indicated, for all the reasons above, in my judgment the outcome of this case, so far as the decision of dishonesty is concerned, does not in fact depend on my reaching that conclusion. For the reasons I have given, the decision must fall because of the paragraph 51 point. I then, quite apart from the question of whether it was otherwise wrong, would have to, and do, address that question again, as, in effect, a tribunal of first instance.

[80]I turn now to the question of what are the implications of the findings which I have made, so far as impairment and sanction are concerned. My understanding, in the hearing which was adjourned, was that it was accepted by Mr Saini that, in the event that the dishonesty finding was overturned, I should deal with the question of impairment and/or sanction myself. Having taken instructions, his position before me today is somewhat modified. As I understand it, Mr Saini's position, on instructions, is as follows: if, as has happened, I overturned the finding of dishonesty and/or, as has happened, one of the findings of misleading, I should then remit the question back to the Panel, either newly constituted or reconstituted, to decide on whether there should be a finding of impairment. He also submitted that if, contrary to that submission, I decided not to remit it, that I should find that there is impairment. He thereafter submitted that if I find that there is impairment, that that is sufficient sanction, in all the circumstances, and that no other sanction is necessary. However, with this caveat, that if I was of the view that it is appropriate that there should be a warning, that is not a matter that I have jurisdiction to order. Therefore, I should remit the matter to a Panel for the sole and specific purpose of them issuing a warning in terms which I would direct them to do. That arises under section 40(7) of the Medical Act 1983, which provides:

"(7) On an appeal under this section from a Fitness to Practise Panel, the court may— (a) dismiss the appeal; (b) allow the appeal and quash the direction or variation appealed against; (c) substitute for the direction or variation appealed against any other direction or variation which could have been given or made by a Fitness to Practise Panel; or (d) remit the case to the Registrar for him to refer it to a Fitness to Practise Panel to dispose of the case in accordance with the directions of the court..."

Section 35D(3) of the Act provides:

"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."

[81]That is a power that is in terms conferred only on the Panel, and it was common ground between counsel that the giving to the person of a warning is not something that the High Court, on appeal, has power to do under section 40(7). Thus, if the court were of the view that the appropriate course is that there should be a formal warning, the way in which it should give effect to that view would be to remit it under section 40(7)(d) to the registrar for him to refer it to a Fitness to Practise Panel to dispose of the case in accordance with the directions of the court.

[82]Miss Foster submitted very vigorously that I should myself deal with the question of impairment for the same reasons as she submitted I should deal with the question of dishonesty, namely that this matter having been hanging over Dr Khan for as long as it has it would be very unfair to prolong the uncertainty and the cost, not least having regard to the fact that the current position is hanging like a sword of Damocles over him and his professional career. I accept that submission.

[83]In my judgment, although in the ordinary case it would have been appropriate to remit this to a Fitness to Practise Panel, because in the ordinary case it is desirable that questions of fitness to practise should be determined by a Panel rather by the court for the obvious reason that the Panel is composed of people with a closer interface with the profession, nonetheless, in the exercise of my discretion and in the interests of justice, it is appropriate that I should deal with it myself today.

[84]I should say this by preface: nothing that I have said, or say hereafter in this judgment, should be taken as in any way indicating that the court takes a relaxed view of a doctor who, in an application for a hospital appointment, or an academic appointment, makes an application which contains inaccurate or misleading entries. It is to the highest degree important that hospitals and public bodies, when considering medical applications, should be able to do so confident that the applications are accurate and not misleading. It is in the interests of the public, and for the protection of the public, that such an approach is adopted, both by the Fitness to Practise Panel and, on review, by the High Court.

[85]It is the case that the application and the CV in this case included a number of entries that were either inaccurate or misleading or both. However, it is also the case that there was, in this case, no dishonesty, as I have found and that there were very special circumstances which gave rise to the inaccuracies. Those circumstances were that Mr Khan, who had been working in America, had omitted to appreciate that the closing date for this application was 12th June, and therefore had to fill it out in a great hurry with the assistance of his wife and brother, and that those circumstances are, in my judgment, both unusual and very unlikely to repeat themselves. This is a doctor who, on all the evidence before me, is a doctor of not only integrity but great ability, with a good career both behind and in front of him. In my judgment, applying the test as to impairment of fitness to practise, in the circumstances that come before the court, that test is not satisfied.

[86]Section 35C of the 1983 Act provides that:

"(2) A person's fitness to practise shall be regarded as 'impaired' for the purposes of this Act by reason only of— (a) misconduct..."

That is the section relied on in this case.

[87]In the case of Roylance v General Medical Council

[2000] 1 AC 311

, which dealt with the test of serious professional misconduct, as it then was, the House of Lords held that:

"... while an exhaustive definition of 'serious professional misconduct' was inappropriate, misconduct involved some act or omission, falling short of what would be proper in the circumstances, which was linked to the profession of medicine, though not necessarily occurring in the carrying out of medical practice, and serious..."

That is not the test that is to be applied under section 35C(2) of the 1983 Act, which refers to misconduct.

[88]In my judgment, having regard to all that I have heard and read, this is not a case in which I am satisfied that, by reason of the inaccurate and/or misleading entries on the application form and/or CV, Mr Khan's fitness to practise should be regarded as impaired. Had I found otherwise, it is accepted by Mr Saini on behalf of the GMC that it would not have been appropriate for there to have been any further sanction. I agree with that submission. If, therefore, I am wrong in my finding that there should be no finding that Mr Khan's fitness to practise is impaired, I would in any event, and do in any event, quash the decision of the Panel that the registration of Mr Khan should be suspended for 4 months.

[89]The final question that arises is whether it is appropriate that I should direct the registrar to remit the case to a Panel for the purpose of the Panel issuing a warning in accordance with the direction given by me.

[90]It is submitted by Mr Saini that any admonitory words used in my judgment would not be an adequate substitute for a formal warning given by a Panel, in that only such a formal warning would be formally recorded and available for perusal by medical authorities in this country and abroad. In my judgment, this is not an easy matter. There are two questions for me to consider. One is the question of sending a message, both to the profession and to the public, that putting in a sloppy application form, or a sloppy CV, or both, when applying for a hospital job is not acceptable. The second question is specifically referable to Mr Khan.

[91]So far as the first question is concerned, in my judgment that matter can adequately be addressed by remarks that I have made and do make in this judgment. So far as the question referable to Mr Khan is concerned, it is urged upon me vigorously by Miss Foster that it would be unfair and inappropriate for there to be a remission to a Panel with a direction to issue a formal warning, because such a warning would remain on the record for 5 years from the date on which it was issued. In this case, the warning would arise out of matters that were done and not done by Mr Khan as long ago as June 2003. It is not possible to know when a reconstituted, or the same Panel constituted again, could meet in order to issue such a warning, but, whenever it was, it would have the effect that such a warning would be on his record for a period going forward at least until the autumn of 2013, if not beyond.

[92]This is not an easy matter to decide, because, as I have indicated, this court does not take lightly the submission of an inaccurate and/or misleading application for a public post in a hospital by a doctor. It is plain that Mr Khan should have taken more care, notwithstanding the urgent circumstances in which he had to complete the application form, to ensure that it was accurate and not misleading. However, it is urged upon me by Miss Foster that it is extremely unlikely that Mr Khan will ever make this kind of mistake again. It has already had the effect that he has had a suspension for 4 months hanging over his head, with the very real impact on his career in that at least one, if not two, job offers have been withdrawn.

[93]He expressed, as one sees from the transcript, contrition at the hearing; it is not suggested that he either has repeated this, or anything like this kind of approach, again; and in my judgment it is not likely, in the light of the consequences that have flown from his application, that he will do so, with or without a warning. In those circumstances, in my judgment, it is not necessary that I should remit this matter to the registrar for him to reconstitute or constitute again the same Panel to issue a formal warning. It is sufficient that Mr Khan reads, as no doubt he will, the terms of this judgment, in which, having expressed the views that I have, I indicate the further view that if he were ever to make any kind of application to any hospital, adopting the same approach as he did in June 2003, it is very likely that the authorities in whichever jurisdiction would take a very, very serious view of it. In my view, it is unlikely that that will in fact arise for the reasons which I have given.

[94]MISS FOSTER: My Lord, I am extremely grateful on behalf of Mr Khan that you felt able to give the judgment this afternoon, which is an enormous help, particularly since he is out of the jurisdiction waiting your word. If falls to me now only to apply for my costs, which I do not believe are opposed.

MR JUSTICE STADLEN: I order that the GMC pays Mr Khan's costs.

[96]MISS FOSTER: Thank you very much.

MR JUSTICE STADLEN: Is there anything else?

[98]MR SAINI: No, my Lord.

[99]MR JUSTICE STADLEN: Can I thank you both very much indeed for your very helpful submissions, both oral and written, which I found very helpful. Thank you very much.

[100]MR SAINI: Thank you.

[101]MISS FOSTER: Thank you, my Lord.

[102]MR JUSTICE STADLEN: I am sorry I kept the court staff and counsel waiting, but it seemed to me desirable to give judgment straightaway.

[103]MISS FOSTER: We are really very grateful you did that. It is very much appreciated. Thank you.