Varma v General Medical Council [2008] EWHC 753 (Admin)

[2008] EWHC 753 (Admin)

Case No CO/8579/2006

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

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

Date 16/04/2008

Before

THE HONOURABLE MR JUSTICE FORBES

Between

Sushant VarmaClaimant

The General Medical CouncilDefendant

Oliver Hyams (instructed by John Ford Solicitors) for Appellant

Mark Shaw QC (instructed by the Solicitor to the General Medical Council) for Defendant

Hearing Hearing date: 14 th February 2008

Judgment

Mr Justice Forbes :

[1]Introduction. This is an appeal by Dr Sushant Varma (“Dr Varma”) against the decision of the General Medical Council (“the GMC”) by its duly appointed Fitness to Practise Panel (“the Panel”) made on 19 September 2006, following the Panel’s hearing and determination of disciplinary proceedings brought against Dr Varma by the GMC in respect of various allegations of misconduct (“the proceedings”), that Dr Varma’s name be erased from the Medical Register and that his registration be immediately suspended. The erasure is automatically held in abeyance pending the outcome of this appeal. The immediate suspension took effect on 19th September 2006 and continues in effect.

[2]The Background Facts prior to the commencement of the Proceedings. Dr Varma studied medicine at Sheffield University from 1992 to 2001, graduating on 8th May 2001. During most of the time material to the allegations of misconduct that were considered in the proceedings (December 2000 to September 2002), he was employed by the North Cheshire Hospitals NHS Trust (“the Trust”) as a house officer at Halton General Hospital in Cheshire. His supervising Consultant was Dr Williams. However, Dr Varma has not worked as a doctor since March 2002. In May 2002, he was suspended by the Trust. He is also currently the subject of an “alert letter” issued on 17th June 2003 – the method whereby all NHS bodies (and private sector employers) nationwide are made aware of a doctor whose performance or conduct is considered by the NHS to place patients or staff at serious actual or potential risk. Alert letters are issued by the relevant Regional Director of Public Health, who must keep their continuing relevance and validity under review: see Health Service Circular 2002/011 issued by the Department of Health and dated 1st November 2002.

[3]The misconduct allegations against Dr Varma stemmed from concerns about his fitness to practise (especially his honesty) as detailed to the GMC by the Trust’s Medical Director (Dr Rose) by letter dated 4th December 2002. On 14th May 2002, the Trust had already suspended Dr Varma in view of those concerns. The Trust had also initiated disciplinary proceedings against him and was due to hold a disciplinary hearing on 15th May 2003. In the event, Dr Varma tendered his resignation at that hearing and no further action was taken.

[4]In July 2003, Dr Varma applied to the Employment Tribunal alleging constructive dismissal due to “institutional racism” within the Trust. Dr Varma appeared and acted in person at the hearing before the Tribunal, which dismissed his claim on 17th August 2004. However, on 28th June 2006, the Employment Appeal Tribunal allowed his appeal against that decision and remitted the case to the Employment Tribunal for reconsideration.

[5]Dr Varma was first made informally aware of the GMC’s proceedings by letter dated 4th April 2003. At that stage, in accordance with its normal practice, the GMC was awaiting the outcome of the Employment Tribunal claim, because it turned on similar facts and issues. After that claim was dismissed in August 2004, the GMC carried out and concluded its investigation into the concerns expressed by the Trust. This culminated in the formal notification to Dr Varma by letter dated 8th April 2005 of the specific allegations that were to be put to the GMC’s Case Examiners, together with all supporting documents, under rule 7 of the GMC’s Fitness to Practise Rules 2004 (“the Rules”) for them to decide whether there was a realistic prospect of establishing that fitness to practise was impaired to a degree requiring action on registration and, if so, to refer the matter to the Panel.

[6]On Dr Varma’s behalf his then solicitors, RadcliffesLeBrasseur (instructed by the Medical and Dental Defence Union of Scotland: “MDDUS”), responded to the allegations by letter dated 6th May 2005. The letter was largely concerned with an allegation of undue delay on the part of the GMC in processing the case. However, the final sentence of the letter stated that the allegations were “substantially denied”, but without giving any particulars.

[7]On 28th June 2005, the GMC gave formal notice by letter that the Case Examiners had decided to refer the case to the Panel.

[8]By letter dated 13th April 2006, Dr Varma was given formal notice of the commencement of the Panel hearing (on 15th May 2006) and the allegations (in a slightly modified form) were formally put to him as 13 heads of charge. In essence the charges accused Dr Varma of dishonesty (motivated, in one instance, by malice). More specifically, the 13 heads of charge covered a course of conduct comprising the following six separate incidents spanning almost two years (from December 2000 to September 2002):(1) dishonestly obtaining the signature of the Dean of Undergraduate Studies at Sheffield University in order to re-take an examination critical to qualifying as a doctor (heads of charge 1 to 3);

(2) falsely claiming to colleagues, supervisors and employers that: (i) a fictitious journalist named Matthew Jackson was writing a prominent piece exposing alleged “institutional racism” within the NHS and suggesting that Dr Varma had been one victim; (ii) the Times Educational Supplement was to publish a major article on Dr Varma; and (iii) that friends within the film industry were interested in producing a film or television series about Dr Varma’s case; (heads of charge 4 to 7);

(3) falsely claiming that the Vice-Chancellor of Sheffield University had attempted to bribe him to withdraw accusations of racism against that University (head of charge 8);

(4) submitting a curriculum vitae containing false information in support of an application for a house officer’s post (head of charge 9);

(5) disseminating false and inappropriate information about his employer both in writing and through a website set up for that purpose, and dishonestly denying having done so (heads of charge 10 to 12); and

(6) maliciously disseminating false information claiming that a colleague had lied on oath at a coroner’s inquest (head of charge 13). It was for those reasons that it was said that Dr Varma’s fitness to practise was impaired.

[9]The Grounds of Appeal. Before embarking upon a detailed account of the proceedings, it is necessary to refer to the four grounds of appeal, which are as follows: “(1) The Fitness to Practise Panel (“the Panel”) wrongly refused to stay the proceedings against the Appellant, despite the delay since the Respondent received the complaint which led to the hearing before the Panel. That delay (of well over three years) was such that it was an abuse of process in the circumstances (including the damage done to the Appellant’s health by reason of that delay and the changes which were made during that period to the Respondent’s rules relating to the stringency of the test to be applied by the Panel in cases such as the Appellant’s) to continue the proceedings against the Appellant. (2) The Panel acted unfairly in proceeding to hear the complaints against the Appellant in his absence. (3) The Panel(i) unfairly and/or wrongly refused to read relevant and material documents put before the Panel by the Appellant and/or

(ii) wrongly failed to take into account the material in those documents. (4) The penalty imposed on the Appellant was disproportionate.” (i) unfairly and/or wrongly refused to read relevant and material documents put before the Panel by the Appellant and/or (ii) wrongly failed to take into account the material in those documents.

[10]The Facts: The Proceedings. Having regard to the nature of the various grounds of appeal, a fairly detailed account of the proceedings before the Panel is obviously required. Such an account is to be found in paragraphs 7 to 27 inclusive of the first witness statement of Ms Toni Gillian Smerdon, the Solicitor to the GMC. Despite the inevitable length of the quotation, I consider that it is necessary and helpful to quote those paragraphs from Ms Smerdon’s witness statement before turning to the parties’ submissions with regard to the grounds of appeal, as follows: “The application to stay the proceedings: 15 May 2006 - 5 June 2006 7. As stated in the notice of hearing, the proceedings before the Panel began in Manchester on Monday 15 May 2006, but were punctuated from the outset by a number of adjournments (varying in duration from minutes to hours to days) to accommodate Dr Varma and his team. These are described in the transcript and the main ones are summarized below. The Panel consisted of Prof Kirby (Chairman and a medical member), Mrs Chaudhry (a lay member) and Mr Yates (a lay member). At all times a Legal Assessor, Mr Nigel Parry, solicitor, sat with the Panel and gave advice before any of the decisions described below were made. Dr Varma was represented throughout this phase of the proceedings by very experienced solicitors (RadcliffesLeBrasseur) and counsel (Miss O'Rourke). (Later, from mid-June 2006 as explained below, he was represented by different solicitors and counsel.) The GMC arranged that Dr Varma should receive daily transcripts of the hearing at no cost. Initially, he received these through his solicitors. Later, they were emailed direct to him at whichever email address he was using at the time (the address varied during the course of the proceedings). It was indicated that he was following the proceedings using those transcripts … First thing on 15 May 2006 an adjournment for seven days was sought on Dr Varma's behalf under rule 29(2) in order to obtain a full psychiatric report on him from Prof Bluglass (in support of the application described in paragraph 8 below). At that stage only a very brief interim report was available. The Panel considered that a full report could reasonably be obtained within three working days and, accordingly, adjourned the hearing until Thursday 18 May 2006. 8. At 9.30am on 18 May 2006 the Panel reconvened and, after an adjournment until 2.15 pm granted to give Dr Varma's team time to take instructions, Dr Varma's counsel applied for an indefinite stay of the proceedings based on two grounds.(1) Abuse of process (by the GMC as "prosecutor") at common law. This was the primary ground of the application and was based on alleged delay and prejudice in the GMC's investigation of the information provided by the Trust, apparent bias and non-disclosure of documents.

(2) Dr Varma's poor health, especially mental health, based on his alleged inability to participate in the proceedings by giving evidence and/ or instructions. Evidence and argument relating to the stay application occupied eight hearing days (excluding the opening day, 15 May 2006): that is, from Thursday 18 May 2006 to Friday 2 June 2006 inclusive. 9. In brief, the stay application consisted of the following main component parts (in rough chronological order): (1) Short opening oral submissions from Dr Varma's counsel on 18 May 2006, expanded on 23 May 2006. (2) No substantive progress was made on 19 May 2006. First, there was a brief dispute about the admissibility of a transcript of a conversation between Dr Varma and the GMC's President. Dr Varma's counsel sought its admission. The GMC's counsel (Mr Taylor) did not oppose the application but left the Panel to assess the relevance of the document. The argument on that issue concluded on 22 May 2006 with the document's admission. Second, the more substantial argument on 19 May 2006 culminated at about 2.15pm with the Panel granting another adjournment (until 9.30am on Monday 22 May 2006) to Dr Varma's counsel while she clarified whether she and her solicitor would continue to act for (and whether the MDDUS would continue to fund) Dr Varma in view of comments he was alleged to have made to a third party about the quality of the advice and representation he was receiving. Before the resumption Dr Varma provided his instructions in writing and his representatives felt able to continue in place.

(3) Written evidence from Dr Varma's expert witness, Prof Bluglass: namely a main report dated 17 May 2006 and a supplementary report dated 23 May 2006 ...

(4) Written evidence from the GMC's expert witness, Dr Garvey: namely, a main report dated 19 May 2006, a first addendum dated 30 May 2006 and a second addendum dated 31 May 2006 …

(5) Oral evidence from Prof Bluglass on 18 May 2006, supplemented on 30 May 2006.

(6) Oral evidence from Dr Garvey on 22 May 2006.

(7) On 23 May 2006 oral evidence from Dr Varma's mother was interposed within the expansion by Dr Varma's counsel of her short opening oral submissions.

(8) No substantive progress was made on Wednesday 24 May 2006. Another adjournment (until 9.30am on Tuesday 30 May 2006) was granted to Dr Varma's counsel while she again clarified whether she and her solicitor would continue to act for (and whether the MDDUS would continue to fund) Dr Varma. This issue re-arose from an email, sent by the same third party referred to in (2) above, again making allegations about Dr Varma's dissatisfaction with the advice and representation he was receiving. At the resumption on 30 May 2006 Miss O'Rourke informed the Panel that she and her instructing solicitor would continue to represent Dr Varma until the end of the stay application (in view of professional conduct rules) but not beyond. This is what happened. Miss O'Rourke also told the Panel that Dr Varma had been so informed and that he appeared to be "content with" or "accepting of" the position … On the same morning, after a further short adjournment, Dr Varma (who was present in the building that day) himself produced a detailed document in support of the stay application and confirmed that Miss O'Rourke and RadcliffesLeBrasseur were still instructed by him … The document was put before the Panel.

(9) Written evidence from Dr Varma's solicitor (Mr Shipway of RadcliffesLeBrasseur) and oral evidence from him by telephone link on 30 May 2006.

(10) Further oral evidence from Prof Bluglass by telephone link on 30 May 2006 and further opening oral submissions by Dr Varma's counsel.

(11) Closing oral submissions by the GMC's counsel on 30 and 31 May 2006.

(12) Closing oral submissions in reply by Dr Varma's counsel on 31 May 2006 and 2 June 2006. (The Panel did not sit on 1 June 2006, as had previously been agreed, due to other commitments of the Panel members.)

(13) Advice from the Legal Assessor on 2 June 2006.

(14) Comments by both counsel on the Legal Assessor's advice on 2 June 2006.

(15) Dr Varma's counsel and solicitors then withdrew from representing Dr Varma (and the MDDUS withdrew its support). 10. On Monday 5 June 2006 the Panel rejected the stay application. In short, as regards delay, the Panel explained that it was:

"not satisfied that there would be any undue prejudice to Dr Varma's case. Furthermore, the medical evidence does not establish that Dr Varma has suffered serious prejudice as a result of the delay." … As regards health, the Panel found: "on the basis of the evidence and on the balance of probabilities that Dr Varma can understand the nature of these proceedings and is able to communicate his views to his lawyers ... The Panel is satisfied that by taking the steps outlined in the case of R (on the application of TP) v West London Youth Court [2005] EWHC 2583 (Admin), Dr Varma has the opportunity of a fair trial and that it would be right and proper to try Dr Varma in relation to the allegations which have been laid against him. In coming to this conclusion, the Panel paid special attention to objective documentary evidence, namely the statement prepared personally by Dr Varma concerning his voice recording of a discussion with Professor Sir Graeme Catto … ; his preparation for and appearance at an Employment Tribunal; the evidence it has heard that Dr Varma was preparing for an Employment Appeal Tribunal in which he was instructing lawyers to appear on his behalf; the statement Dr Varma prepared in relation to the present proceedings indicating that he had been following them by means of transcripts and communication with his lawyers; finally, from reading some of the e-mails to his defence lawyers in which he waived legal privileges ... The Panel will at all times bear in mind that it will be a matter for it to exercise any powers it deems necessary to halt proceedings either temporarily or permanently. This is a fair, properly constituted and independent Panel tasked with considering the case of Dr Varma. The Panel has considered the judgment in the case of R (on the application of Toth) v GMC, in which Mr Justice Lightman states: 'The general principles underlying the Act and Rules are that: (a) the public have an interest in the maintenance of standards and the investigation of complaints of serious professional misconduct against practitioners; (b) public confidence in the GMC and the medical profession requires, and complainants have a legitimate expectation, that such complaints (in the absence of some special and sufficient reason) will be publicly investigated by the PCC; and (c) justice should in such cases be seen to be done. This must be most particularly the case where the practitioner continues to be registered and to practice.' In considering this application, the Panel has borne in mind this principle. The Panel has balanced the personal rights of Dr Varma and the public interest. The allegations against Dr Varma are serious and the Panel is not satisfied that there has been an abuse of process in this case such as to stay proceedings because Dr Varma will be seriously prejudiced and would not be able to have a fair trial. Furthermore, it considers that it is fair to try Dr Varma." … The decision to embark on the substantive hearing while Dr Varma was absent and unrepresented: 5 June 2006 11. As explained in paragraph 9(8) above, the Panel was already aware that, once the stay application had been completed, Dr Varma would … no longer be represented by solicitors or counsel. Nor was he present on 5 June 2006. Accordingly, the Panel immediately considered whether it should proceed with the hearing in those circumstances, as it was entitled to do under rule 31 if "satisfied that all reasonable efforts [had] been made to serve the practitioner with notice of the hearing in accordance with these Rules" and applying the principles laid down by the House of Lords in R v Jones [2002] 2 WLR 524. The Panel determined that it should proceed, concluding that Dr Varma had "voluntarily chosen to waive his right to be present and give evidence and be represented" and that it was right to continue with the case balancing fairness to Dr Varma with the wider public interest … The Appellant was immediately informed of the decision by email via the transcript. His email of 6 June 2006 (see paragraph 13 below) made it clear that Dr Varma was aware of the Panel's decision to proceed in his absence. The start of the substantive hearing and its first adjournment: 5-7 June 2006 12. Accordingly, the Panel then embarked upon the substantive hearing. The heads of charge were read out and the GMC's counsel opened the case and called its first witness (Dr Rose, the Trust's Medical Director) of the 19 who were scheduled. 13. On the following day, 6 June 2006, the evidence of Dr Rose was completed and six other witnesses were called by the GMC's counsel. At 3.11pm Dr Varma sent the GMC an email requesting that the hearing be adjourned temporarily to enable him to secure alternative representation … The Panel considered that application at the end of that afternoon's proceedings but refused it, explaining that it was satisfied that: "

Dr Varma fully understands the stage that these proceedings are at. Indeed, the correspondence received from him demonstrates an impressive knowledge of the legal procedures that the Panel is following and a full understanding of the complex provisions of the Judicial Review Procedures. Dr Varma has been aware since 30 May 2006, at the very latest, that he would be without legal representation after his application to stay proceedings as an abuse of process had been determined and yet appears to have taken no action to engage alternative representation" … The GMC informed Dr Varma of the decision, and attached a copy of the determination, by email dated 7 June 2006 at 1.40pm … The same email told him that if there was any further information that he wished to present to the Panel that day he should send it by email and it would be placed before the Panel at an appropriate break in proceedings. By 7 June 2006 a special email address had been provided to Dr Varma to facilitate and accelerate his communications with the GMC and the Panel concerning the proceedings. (Earlier during the same day, when less was known about what Dr Varma was seeking, the Panel had made a similar decision declining an adjournment … 14. However, on 6 June 2006 Dr Varma (acting in person) had already lodged an urgent judicial review claim (CO/4689/06) seeking interim relief to prevent the Panel from proceeding while he remained absent and unrepresented … The claim form and supporting documents were received by the GMC, in various parts, on 12, 13 and 15 June 2006. The Panel had, however, received notice of the claim by fax on the morning of 6 June 2006. It decided to proceed with the hearing unless and until notified of the court's reaction to the claim … 15. On 7 June 2006 the GMC continued to present its case, calling a further nine live witnesses. At the end of that day, with the GMC's case still incomplete, the hearing had to be adjourned part heard. This was not prompted by the urgent judicial review claim. It had always been planned that, due to the previous commitments of Panel members and the original scheduling timetable, 7 June 2006 would be the last day of that session. The Panel could not itself then indicate a date for the resumption of the hearing. However, later the same day two provisional dates were identified, depending on the availability of Panel members and counsel. They were 20 or 21 June and 11-19 September 2006. Dr Varma was so informed by email dated 7 June 2006 … A few days later, by letter dated 13 June 2006 to Dr Varma, the GMC confirmed the June and September dates … The beginning and end of the first judicial review claim: 8 June 2006 - 15 August 2006 16. On 8 June 2006 the urgent judicial review claim was considered on the papers by Kenneth Parker QC, sitting as a judge of the High Court. He ruled that there were "no grounds to justify immediate interim relief of the nature sought" but required the GMC to write to Dr Varma (copied to the Administrative Court) by 12 June 2006 explaining the Panel's decision. In fact, unbeknown to the judge, the GMC had already done this by email dated 7 June 2006 (paragraph 14 above). Very shortly thereafter, however, Dr Varma did obtain fresh legal representation and the judicial review claim became moot. The claim was withdrawn with no order for costs pursuant to a Consent Order dated 15 August 2006 (and sealed on 6 September 2006) providing for the hearing to resume, as planned, on 11 September 2006 with the witnesses heard the previous June being recalled for cross-examination by Dr Varma's fresh representatives … Previously, by a letter dated 22 June 2006 to the Administrative Court, Dr Varma himself had confirmed that he agreed to this course … The resumption of the substantive hearing and its second adjournment: 20 June 2006 17. Even before Dr Varma's confirmatory letter, his fresh counsel (Mr Price-Rowlands), although not yet any new solicitors, appeared before the Panel at the resumed hearing on 20 June 2006 … In order to allow Mr Price-Rowlands time to familiarize himself with the case, both counsel made a joint application that the Panel should adjourn unti1 11 September 2006 when it was agreed that witnesses already called by the GMC could be recalled for cross-examination by Mr Price-Rowlands (as later included in the Consent Order dated 15 August 2006). The Panel accepted this course. Mr Price-Rowlands also indicated that the urgent judicial review claim was likely to be withdrawn since it had been superseded by his instruction on behalf of Dr Varma. The completion of the substantive hearing (and the intervention of the second judicial review claim): 11-19 September 2006 18. In accordance with the Consent Order and the terms of the adjournment on 20 June 2006, on Monday 11 September 2006 the hearing resumed before the same Panel. The case was part heard. The GMC's opening had not yet been completed, the Panel was to hear further live evidence on the GMC's behalf and any earlier GMC witnesses whom Mr Price-Rowlands wanted to cross-examine were to be recalled. Dr Varma was no longer supported by the MDDUS and was absent on 11 September 2006 but was represented by Mr Price-Rowlands instructed by his new solicitors (Brabners Chaffe Street). Nevertheless, the hearing did not continue as envisaged. Instead of resuming with evidence from fresh and/ or recalled witnesses, a number of new procedural applications and objections were made on Dr Varma's behalf. 19. At the start of the morning of 11 September 2006 Mr Price-Rowlands told the Panel that he did not have full instructions from Dr Varma and sought a short adjournment in order to obtain these. The request, neither opposed nor supported by GMC's counsel, was granted and the Panel adjourned until 12 noon. At 12 noon Mr Price-Rowlands informed the Panel that he still he did not have full instructions and sought a further adjournment until 9.30am on 13 September 2006. The request was neither opposed nor supported by GMC's counsel, although he made comments about the best way to secure the availability of the GMC's witnesses who were to be recalled. The Panel agreed to adjourn until 2pm on 12 September 2006. 20. In fact, the Panel did not reconvene until 3.30pm on 12 September 2006. At that time Mr Price-Rowlands made an application (opposed by GMC's counsel) that the Panel should recuse itself (and be replaced by a fresh Panel after a suitable adjournment) because its admission of live evidence while Dr Varma was absent and unrepresented rendered it biased. It was asserted that the problem could not, after all, be solved by recalling the witnesses as previously agreed. The Panel rejected the application … Mr Price-Rowlands then informed it that first thing the following morning he would be asking for an adjournment of the hearing for 48 hours so that a second urgent judicial review claim could be lodged and heard. He added that he was probably going to be instructed by Dr Varma not, after all, to ask for any of the GMC's witnesses to be recalled for cross-examination at any time … This was confirmed the following day … 21. At 9.30am the following morning, 13 September 2006, Mr Price-Rowlands told the Panel that his instructions were still unclear and sought a short adjournment, neither opposed nor supported by GMC's counsel, to clarify them with Dr Varma (who was in the building that day). This was granted unti1 11am. At 11am Mr Price-Rowlands sought, and was granted, a further adjournment until 12 noon (again neither opposed nor supported by GMC's counsel). At 12 noon he placed before the Panel a letter dated 13 September 2006 from Dr Varma to the Panel … in which he sought an adjournment for 48 hours in order to lodge a second urgent judicial review claim challenging the Panel's decision on 5 June 2006 to reject the stay application (paragraph 10 above), its decision to reject the recusal application (paragraph 20 above) and three decisions made by me rather than the Panel … It was said that during those 48 hours an interim injunction would be sought from the Administrative Court, by telephone, to stay the proceedings until final determination of the second judicial review claim. Mr Price-Rowlands made oral submissions in support of Dr Varma's letter/application (the drafting of which had been done entirely by Dr Varma … The Panel noted that there had already been periodic adjournments since May 2006 and that witnesses had been scheduled and rescheduled to attend on several occasions. It concluded that there was "no cogent reason" for yet another adjournment and refused the application … Mr Price-Rowlands then informed the Panel, at about 4.30pm, that he had been "instructed [by Dr Varma] to withdraw because of the funding issue" … Since Dr Varma was still in the building, the Panel rose for 20 minutes to allow Mr Price-Rowlands to inform Dr Varma of the Panel's determination and to see whether he wished to represent himself. On his return Mr Price-Rowlands reported that his instructions (to withdraw for funding reasons) had not changed and that Dr Varma would not be attending the hearing room … The Panel then decided to proceed with the hearing the next day … A copy of that determination was immediately sent to Dr Varma by email. 22. The following morning, 14 September 2006, the GMC completed the presentation of its case and the Panel retired to consider its findings of fact. While the Panel was deliberating in private the GMC received an email purporting to be from Dr Varma (but emanating from an email address not previously used by him) asking that three lever arch files ("files") of documents be put before the Panel as his written submissions. The files were in a cupboard in the room in the building set aside for Dr Varma and his legal team. The Panel reconvened and heard from the GMC's counsel and the Legal Assessor, who had looked at the files (along with the GMC's solicitor). It then decided that the files would not be of assistance and declined to read them … Dr Varma was immediately so informed by email … and the files were returned to him after the end of the proceedings. The Panel then returned to its deliberations but had reached no conclusions by close of play. On 14 September 2006 the GMC also received a letter from Brabners Chaffe Street on Dr Varma's behalf requesting an adjournment until the following day … There was no mention of the files. The GMC's reply, of the same date, stated that the Panel noted the request but was currently not sitting anyway because it had retired to consider the evidence and not yet reached any determination … 23. On 15 September 2006 the Panel resumed its deliberations in private and reached its findings of fact. On returning to the public session, during the afternoon, it was informed that the GMC had earlier that day been notified of an Order made on the telephone at 11.30pm the previous evening by Mr Justice Walker on Dr Varma's second judicial review claim. The Order required the GMC to refrain, until 9 October 2006 or further order, from publishing to anyone other than Dr Varma and his legal advisers any decision taken on or after 15 September 2006 in the proceedings … It appeared, from paragraph 20 of Dr Varma's "draft/Grounds for Seeking Judicial Review" … that Mr Justice Walker was asked to restrain the Panel from continuing to hear the disciplinary proceedings at all and from making any decision but that he refused so to order. Instead, he accepted the alternative submission set out in paragraph 22 of Dr Varma's "draft/Grounds for Seeking Judicial Review" and restrained publication of the outcome of the proceedings. It seemed that he was not asked to, and did not, order that the hearing should be kept private (only the Panel's decisions). The material part of the Order was read out in public and, in accordance with its terms, the Panel then went into private session to deliver its findings of fact. (As a precaution, the remainder of the disciplinary proceedings took place in private because of the risk that a submission or comment would reveal part of the findings of fact.) The Panel found proved almost all of the 13 heads of charge [pages 1-3 of the decision letter]. The main allegation not found proved was that set out in paragraph 6(6) above. The hearing was then adjourned until Monday 18 September 2006. 24. On the morning of 18 September 2006 Mr Price-Rowlands returned to represent Dr Varma (and remained until the conclusion of the proceedings the next day). There was no mention of the files but at the outset he made an application that the Panel should adjourn to allow an assessment of Dr Varma's health to be undertaken under rule 17(4)(b) in the light of a further medical report on Dr Varma from Dr Bisarya: in other words, that the case should cease to be a misconduct case and be treated as a health case. The application was opposed by GMC's counsel and refused by the Panel … Applying rule 10(4) and Crabbie v GMC

[2002] 1 WLR 3104

(PC), the Panel considered that it could not exclude the possibility that at the end of the case it might (as, in fact, it did) direct that Dr Varma's name should be erased from the Medical Register, a sanction not available if the case were treated solely as a health case. (A similar application had been made by GMC's counsel on 30 May 2006. Counsel for Dr Varma neither supported nor opposed it and it was refused by the Panel, which noted that it could exercise the discretion under rule 17(4)(b) later if considered necessary … The Panel then turned to consider whether, in the light of the facts found proved, Dr Varma's fitness to practise was impaired by reason of his misconduct. Having heard submissions from both counsel, it determined that Dr Varma's fitness to practise was indeed impaired [pages 47 of the decision letter]. 25. On 19 September 2006 the Panel turned to the question of sanction. At the start of the day Mr Price-Rowlands sought time to consider written instructions that he had just received from Dr Varma. The Panel granted an adjournment of 30 minutes … It then heard submissions from the GMC's counsel on the appropriate sanction. Mr Price-Rowlands made submissions in reply. The Panel retired and later delivered its determination that the public interest required the erasure of Dr Varma's name from the Medical Register [pages 8-10 of the decision letter]. Amongst other things, it noted that dishonesty was a recurrent theme in the heads of charge, that the misconduct had been "premeditated, persistent and covered up" and that Dr Varma had displayed no insight into the seriousness or implications of his behaviour. Finally, also on 19 September 2006 and after more submissions from both counsel, the Panel determined that Dr Varma's registration should be suspended immediately "for the protection of members of the public, in the public interest and in Dr Varma's own interests" given "the serious nature of this case" [page 11 of the decision letter]. The effect of that determination was to suspend Dr Varma's registration from 19 September 2006, regardless of this pending appeal. However, by virtue of paragraph 10(1) of schedule 4 to the Medical Act 1983, this appeal operates as a stay on the Panel's direction for erasure. 26. Looking back over the proceedings, it can be seen that the Panel allowed Dr Varma many adjournments to facilitate the preparation and presentation of his case. I have counted 21 in total. • 15 May 2006 - from 11am until 11.30am. • 15 May 2006 - from 2pm until 9.30am on Thursday 18 May 2006. • 18 May 2006 - from 10am until 1.30pm. • 18 May 2006 - from 1.40pm until 2.15pm. • 19 May 2006 - from 10.30am until 11am. • 19 May 2006 - from 11.15am until 12.45pm. • 19 May 2006 - from 12.45pm until 2pm. • 19 May 2006 - from 2.10pm until 9.30am on Monday 22 May. • 22 May 2006 - from 9.40am until 10.15am. • 22 May 2006 - from 10.20am until 11am. • 22 May 2006 - from 11am until 12.05pm. • 24 May 2006 - from 10.25am until 9.30am on Tuesday 30 May • 30 May 2006 - from 9.45am until 11.05am. • 5 June 2006 - from 2pm until 3pm. • 20 June 2006 - from 10.45am until 11 September 2006. • 11 September 2006 - from 10.40am until 12 noon. • 11 September 2006 - from 12.45pm until 12 noon on Tuesday 12 September 2006. • 13 September 2006 - from 9.40am until 11 am. • 13 September 2006 - from 11.15am until 12 noon. • 13 September 2006 - from 4.10pm until 4.30pm. • 19 September 2006 - from 9.40am until 10.10am. The end of the second judicial review claim: 26 September 2006 27. On 26 September 2006, on the GMC's application at an oral hearing, Mr Justice Burton discharged the Order made by Mr Justice Walker on 14 September 2006 and refused Dr Varma (who was still represented by Brabners Chaffe Street but by fresh counsel, Miss Rowlands) permission to apply for judicial review with costs … Accordingly, the Panel's decisions have now been made public in the normal way. I believe that the facts stated in this witness statement (including the attached chronology) are true.”

[11]I now turn to consider the parties’ submissions with regard to the four grounds of appeal.

[12]Grounds 1 and 2 As is made clear by Ms Smerdon’s evidence (see above), the original application for an indefinite stay of the proceedings had been made for one or both of the following reasons:(i) as an abuse of process on the ground of delay and

(ii) because Dr Varma’s health problems were said to be such that he would be unable to participate in the proceedings by giving evidence and/or instructions. The unsuccessful application for a stay of the proceedings was therefore effectively concerned with the points raised by both grounds of appeal. Accordingly, on behalf of Dr Varma, Mr Hyams very sensibly took these two grounds together and I propose to adopt the same course.

[13]Mr Hyams stressed that three and a half years had elapsed between the date of the original complaint (December 2002) and the commencement of the hearing (May 2006) and that, in its decision not to stay the proceedings, the Panel had concluded that there had been “delays (which) were inordinate and unjustifiable on the part of the GMC”. Having acknowledged that there had been substantial failings on the part of the GMC in relation to this case, the Panel had gone on to express the view that, despite these undoubted shortcomings, there was no evidence of either “manipulation or malicious intent” on the part of the GMC.

[14]Mr Hyams pointed out that the Panel had also indicated that, when considering the issue of Dr Varma’s health, it had preferred the evidence of Professor Bluglass. Mr Hyams emphasised that, in his first report, Professor Bluglass had stated that “the delay has affected (Dr Varma’s) health”, had expressed the view that Dr Varma would have “difficulty giving evidence and explaining himself and in dealing with questions” and that he would find it “very difficult to cope with a hearing which I understand could last for more than a week from perhaps 9am-5.0pm.”

[15]However, as already indicated, on 5th June 2006, the Panel decided that it was satisfied that Dr Varma could still receive a fair trial, notwithstanding the unjustifiable delay and Dr Varma’s “long term problems of ill health, the nature of which (was) not entirely clear”. Accordingly, the application for a stay of the proceedings was refused.

[16]It was common ground that the principles to be applied when considering whether to stay the proceedings as an abuse of process because of delay are those stated by Rose LJ, Vice President, when giving the judgment of the Court in R ~v~ S

(2006) EWCA Crim 77

(hereafter “S”), as follows:

“20. In our judgment, the discretionary decision whether or not to grant a stay as an abuse of process, because of delay, is an exercise in judicial assessment dependent on judgment rather than on any conclusion as to fact based on evidence … 21. In the light of the authorities, the correct approach for a judge to whom an application for a stay of process on the ground of delay is made, is to bear in mind the following principles: (i) Even where delay is unjustifiable, a permanent stay should be the exception rather than the rule; (ii) Where there is no fault on the part of the complainant or the prosecution, it will be very rare for a stay to be granted; (iii) No stay should be granted in the absence of serious prejudice to the defence so that no fair trial can be held; (iv) When assessing possible serious prejudice, the judge should bear in mind his or her power to regulate the admissibility of evidence and that the trial process itself should ensure that all relevant factual issues arising from delay will be placed before the jury for their consideration in accordance with appropriate direction from the judge; (v) If, having considered all these factors, a judge’s assessment is that a fair trial will be possible, a stay should not be granted.” (i) Even where delay is unjustifiable, a permanent stay should be the exception rather than the rule; (ii) Where there is no fault on the part of the complainant or the prosecution, it will be very rare for a stay to be granted; (iii) No stay should be granted in the absence of serious prejudice to the defence so that no fair trial can be held; (iv) When assessing possible serious prejudice, the judge should bear in mind his or her power to regulate the admissibility of evidence and that the trial process itself should ensure that all relevant factual issues arising from delay will be placed before the jury for their consideration in accordance with appropriate direction from the judge; (v) If, having considered all these factors, a judge’s assessment is that a fair trial will be possible, a stay should not be granted.”

[17]It was Mr Hyams’ submission that the Panel had erred in refusing to stay the proceedings on 5th June 2006, particularly having regard to the evidence concerning Dr Varma’s health problems which, it was submitted, had been caused to a significant degree by the unjustifiable delay and clearly showed that his ability to participate properly and meaningfully in the proceedings was so impaired as to render their further progress clearly unfair: see the observations of Elias J in Brabazon-Drenning ~v~ United Kingdom Central Council for Nursing, Midwifery and Health Visitin (2001) HRLR 6 at paragraph 6, where he said this:

“Save in very exceptional cases where the public interest points strongly to the contrary, it must be wrong for a committee which has the livelihood and reputation of a professional individual in the palm of its hands, to go on with a hearing when there is unchallenged medical evidence that the individual is simply not fit to withstand the rigors of the disciplinary process.”

[18]Mr Hyams pointed out that it had been Professor Bluglass’ evidence that the delay had adversely affected Dr Varma’s health and submitted that there was no warrant for the Panel concluding from Professor Bluglass’ evidence (as it did) that Dr Varma could in practice attend the hearing before the Panel. In this regard, Mr Hyams stressed that in a second report, dated 23rd May 2006, Professor Bluglass had stated his opinion in the following emphatic terms:

“Conclusion All this now strongly suggests to me that he is developing delusional thinking possibly following the severe stress of dealing with the GMC hearing after a long delay. His overwhelming preoccupation with all these matter (sic) and the amount of time he devotes to his researches also suggests abnormal obsessional traits and finally there is possible evidence of mood swings which may be indicative of an underlying affective disorder. To establish clearly the processes that are developing in Dr Varma’s case it is now clear that more time and observation would be needed, together with appropriate psychotherapeutic or psychological support. I repeat my view that he would not be able to instruct his legal advisers for the reasons previously stated and now because of his delusional and distorted thinking. He is not in a fit state to appear before the Panel. In my opinion this is now even more clearly a health matter.”

In my opinion this is now even more clearly a health matter.”

[19]Mr Hyams accepted that in his final report dated 31st May 2006, Dr Garvey (who gave evidence on this aspect of the matter on behalf of the GMC) had expressed the view that:

“Opinion 1. I must say that having read the above evidence [i.e. that of Mr Shipway and Professor Bluglass: as to which, see below] I too am less sure that Dr Varma’s beliefs are delusional, though they may be so. 2. I would now wish to say that on the present evidence Dr Varma is fit to continue with the case. … 3. There remains the possibility however that Dr Varma’s condition will worsen if proceedings continue and that as a result his ability to concentrate will worsen and the number of persecutory beliefs and the degree of conviction with which they are held will rise so that continuation of proceedings will prove difficult if not impossible. 4. … In summary, I think it would not be wrong for proceedings to continue but I think it would be an option for the committee to consider requesting a full health assessment.”

[20]However, Mr Hyams contrasted Dr Garvey’s final report with the terms of the report that he had written only the day before (i.e. 30th May 2006), in which he had expressed the following view (inter alia):

“I do however feel, that it is likely that at present Dr Varma is incapable of continuing with the case because his delusional thinking will mean that he cannot believe aspects of the advice he is given and is therefore unable to act on it rationally and give legal instructions to his team.”

[21]Mr Hyams submitted that the Panel had erred in that it had decided the application for a stay essentially on the basis of the medical evidence alone and because, even then, it had been selective in its approach to that evidence in choosing to rely only on those aspects of it that supported its conclusion that it would neither be an abuse of process nor unfair for the proceedings to continue. It was Mr Hyams’ submission that the only fair and proper way for the Panel to have determined the matter had been for it to stay the proceedings. He submitted that, on any view, it had been unfair to proceed against Dr Varma whilst he was unable to respond properly to the charges.

[22]On behalf of the GMC, Mr Shaw QC rightly pointed out that Mr Hyams’ submissions in relation to grounds 1 and 2 had focused almost exclusively on the Panel’s treatment of the medical evidence. Mr Shaw emphasised that the Panel had had to exercise a discretion on the basis of medical evidence which did not all point the same way. He stressed that the Panel’s discretionary decision with regard to the application for a stay was “an exercise in judicial assessment rather than on any conclusion as to fact based on evidence”: see paragraph 20 of the judgment in S (quoted above). Mr Shaw submitted that the Court should be slow to interfere with an exercise of judgment by the specialist Panel which turned to a large extent on its assessment of written and oral medical evidence. I agree with that submission.

[23]Mr Shaw stressed that, even in proceedings marked by unjustifiable delay (as he rightly accepted these proceedings were), a stay should be granted only exceptionally and only when there has been “serious prejudice” to the defence such that the proceedings cannot possibly be fairly conducted: see the judgment in S at paragraph 21(iii) (quoted above). Mr Shaw maintained that, in the present case, it was apparent that the Panel was by no means satisfied that serious prejudice (essentially, that Dr Varma’s health problems were such that he could not participate in the proceedings) would inevitably result and submitted that there was ample medical evidence justifying that conclusion, which he summarised as follows.(i) The main medical report of Professor Bluglass did not find any evidence of mental illness.

(ii) The main medical report of Dr Garvey did not consider that Dr Varma was “incapable of giving instructions to his defence team, understanding advice from his defence team or … giving evidence.”

(iii) The second addendum report of Dr Garvey, dated 31st May 2006, which was the most up-to-date evidence before the Panel written after and in the light of evidence given on behalf of Dr Varma (in particular, that of Professor Bluglass), concluded that Dr Varma “is fit to continue with the case”.

(iv) The oral evidence given by the medical experts.

[24]Mr Shaw stressed that the Panel had heard a considerable amount of oral evidence from (inter alia) Professor Bluglass and that the Professor’s oral evidence as to Dr Varma’s ability to participate meaningfully in the proceedings was far less emphatic than the terms of his reports would appear to suggest. Mr Shaw submitted (correctly, in my view) that, considered as a whole, Professor Bluglass’ evidence was not inconsistent with the conclusions finally reached by the Panel, particularly in the light of Dr Garvey’s evidence and report of 31st May 2006 (see above). In support of that submission and by way of example, Mr Shaw referred to the following passages (inter alia) in the transcript of Professor Bluglass’ oral evidence.(a) Evidence in Chief: 18th May 2006. Q. I just want to ask you finally then about the question of his fitness to give evidence and his fitness to give instructions to his lawyers. Can you just elaborate your opinion upon that? Is he fit to give evidence, fit to give instructions to his lawyers? A. I think he is fit to appear physicallyand to sit here and he would start answering questions, but I do not think he could maintain a measured approach to it in his answers. He is totally obsessed with all this and when you talk to him he goes from one topic to another. He is easily moved to other topics. When you talk to him from one time to another his answers to the same questions are different. …”

(b) Cross Examination: 18th May 2006. Q. Is there any evidence of psychiatric illness today? A. No, if you are talking about mental illness. … Q. He has a personality disorder? A. He has a disorder of certain aspects of his personality. He has not been classified by anybody as having a personality disorder. Q. I see. What would you describe him as having, then? A. As I put it in the report. … I said that assessment of his personality shows that he could have an adjustment disorder, as a result of his delay and so forth. I have also described many aspects of his personality earlier in the report from the history, which shows a considerable amount of immaturity, some problems with his intelligence level, performance level and so on, his tendency towards fantasy, denial and so forth …”

(c) Evidence in Chief: 30th May 2006. Q. And what sort of questions were you concerned to ask at that stage …? A. It was fairly brief. I asked in relation to his claims that his telephone had been tapped, that he had been followed. I asked if he perceived anything in that period which confirmed to him that this just was not a suspicion but that it was true and he said he was quite certain that his ‘phone was bugged and that he had been followed. Q. What did that indicate to you, his answer and his answer as to certainty? A. It seemed to suggest that these beliefs were fixed beliefs and they were possibly delusional, but one would need to explore them further if it was possible and this rather unsatisfactory way of questioning him, but they were worrying.

(d) Cross Examination: 30th May 2006. Q. Whatever the condition is you are describing he has today; what does he have today? A. Today I am saying that the further information that I have had in respect to e-mails and the few questions that I passed to him that came back are worrying and suggest the need for further assessment, because they look as if they may be evidence of delusional thinking. Q. Maybe? A. Yes, maybe. Q. Where are you on the balance of probabilities on that point, do you think it is more likely than not it is evidence of delusional thinking? A. It is difficult. I suppose I am somewhere in the middle because this is a complicated picture. That may well be true, but I am not convinced without any doubt. … Q. He impressed the employment tribunal [in June 2004] with his ability to present his own case? A. Yes Q. In early April of this year, he appeared to impress Mr Shipway that he was able to give instructions and certainly, in respect of one part of the evidence, detailed instructions? A. Yes. … Q. Do you believe that today he can give detailed instructions? A. I do not know about today. I have not spoken to him today or seen him today. Q. When you last examined him, do you believe that he could have given detailed instructions? A. I think he can give instructions, but then he does not stay with them, which makes it very difficult for anybody representing him to know what his case is. … Q. Was he able to give you a history about the circumstances that gave rise to his suspension by the Trust? A. Yes. Q. Was he able to give you a history about the General Medical Council proceedings? A. Yes, he would be able to describe them. Q. So there was no question then that he did not understand the nature of the proceedings that he was due to face? A. No, far from it. He understood it so well that he could engage in a considerable amount of research on the internet, if you remember. Q. Quite. There is no question about memory? He plainly has an ability to recall details going back to when he was at university? A. Yes. Q. He has no difficulty in explaining himself to you, because you have told us that he was able to give you a detailed account? A. Yes. Q. Just so that we are absolutely clear, Professor, when you came to give evidence before the Panel on 18 May, you assured the Panel, I think, in answer to a question from the Chairman, that he was not suffering from a mental illness? A. No, I felt that that was the case. He had traits, as we call them, personality problems and paranoid traits.

(e) In response to questions from the Panel: 30th May 2006. Q. … It seemed to me that the clear evidence you were giving us then [on 18th May 2006] was that he did not fulfil bipolar affective disorder, and today, if I understand the evidence that you are now giving us, he may fulfil the criteria? A. I am just saying that there is some possible evidence, as I have put in my report. I stand by my answers to you before, but there is evidence of some possible hypermanic activity, as I have just said, but no clear evidence of serious depressive illness. There are just hints, as I said. It is the same with some of the other factors I have suggested. I think that he needs to be under assessment for some time. Q. Are there any other psychiatric conditions, other than affective disorders, from which he may be suffering? A. I do not think there is any clear-cut mental illness that I can diagnose at the moment from this, but there are all kinds of worrying traits. His obsessive preoccupation with his researches and also his sitting up all night at the internet for hours on end, his sleep disturbance and so forth, are all worrying symptoms that need to be resolved. At the same time, he may be making things up. I do not know. Q. Is there any possibility he could have a stage in the development of schizophrenia? A. I do not think so. Q. You do not think so? Good. Are there organic disorders from which he could be suffering? A. No, I do not think so.”

[25]Mr Shaw submitted that, having considered all the evidence called in relation to the application for the stay (which included the testimony of Dr Varma’s mother, Mr Shipway (his solicitor), the statements prepared by Dr Varma himself and his emails to the defence team as well as the medical evidence), the Panel had been entitled to come to the conclusion (as it did) that Dr Varma could understand the nature of the proceedings and was able to communicate his views to his lawyers. I agree with that submission. I am satisfied that the Panel was clearly entitled to come to such a conclusion on its consideration of all the evidence – in particular, as indicated above, the medical evidence. Furthermore, as Mr Shaw observed, it was a conclusion that was entirely consistent with the following “objective documentary evidence” of his capacity to participate:(i) his preparation for and participation in the hearing of his constructive dismissal claim against the Trust (which closely mirrored the disciplinary proceedings) in the Employment Tribunal, where he had acted and appeared in person, and in the Employment Appeal Tribunal;

(ii) his preparation by himself of two judicial review claims; and

(iii) his preparation by himself of a detailed document in support of the application for a stay.

[26]I agree with Mr Shaw’s further submission that the Panel was right to bear in mind, as it did, that it had to balance Dr Varma’s private rights against the public interest in having serious allegations properly investigated and adjudicated upon. I also accept that it is clear that the Panel had very much in mind its power to regulate the proceedings so as to ensure fairness. As Mr Shaw pointed out, the Panel cited and applied the judgment of the Divisional Court in R (TP) ~v~ West London Youth Court

(2005) EWHC 2583

(Admin) (hereafter “TP”): see paragraph 18 of the judgment, which states:

“The first port of call is not to prevent the court from hearing the case but to grapple with the difficulties. A trial should not be abandoned before all practical steps to overcome the difficulties have been exhausted. It is also, we think, an important point that the judge who is hearing the trial has a continuing jurisdiction to stay proceedings for abuse of process. Thus, if it becomes apparent during the course of the hearing that the claimant is unable effectively to participate, the judge can stay the proceedings at that point. This is surely a better course than staying a prosecution at the outset when events would have shown it could fairly have proceeded.”

[27]Mr Shaw referred to paragraph 26 of the judgment in TP, which gives examples of practical steps that can be taken to promote a fair hearing, such as the use of simple language, taking regular breaks and explaining the proceedings. I accept Mr Shaw’s submission that, in the present case, it is apparent that the Panel correctly applied the principles stated in paragraph 18 of the judgment in TP and also followed the guidance contained in paragraph 26. Thus, for example, as detailed in Ms Smerdon’s evidence (see above), the Panel granted a total of 21 adjournments to facilitate the preparation and presentation of Dr Varma’s case and arrangements were made whereby the GMC ensured that Dr Varma received promptly by email daily transcripts free of charge throughout the hearing.

[28]Having regard to the care that was manifestly taken to ensure the fairness of the proceedings and the terms of the Panel’s ruling on the application for a stay (see Ms Smerdon’s account of the proceedings, passim), I have no doubt that if it had subsequently appeared to the Panel during the course of the hearing that Dr Varma might be unable effectively to participate in the proceedings (as opposed to voluntarily electing not to be present), the Panel would have given further consideration to the question of whether a temporary or permanent stay should be granted. In the event, such consideration never became necessary because (as the history of the proceedings amply demonstrates) Dr Varma’s various actions such as obtaining further legal representation, giving appropriate instructions to his new lawyers and initiating judicial review proceedings clearly demonstrated that the Panel’s conclusions with regard to his ability to participate in the proceedings had been correct.

[29]It is also important to note that, having dismissed the application for a stay, the Panel gave separate consideration to whether it should proceed with the substantive hearing in the belief that Dr Varma would neither be present nor represented – a belief that turned out to be only intermittently true. As Mr Shaw observed, the Panel had a broad power to do so, as provided in Rule 31, which provides:

“Where the practitioner is neither present nor represented at a hearing, the … Panel may nevertheless proceed to consider and determine the allegation if they are satisfied that all reasonable efforts have been made to serve the practitioner with notice of the hearing in accordance with these Rules.”

In my judgment, the Panel was clearly entitled, at that stage, to conclude that Dr Varma had “voluntarily chosen to waive his right to be present and give evidence and be represented” and right to decide to proceed with the hearing in his absence for the reasons that it gave (see paragraph 11 of Ms Smerdon’s witness statement, quoted above). In this regard, it seems to me noteworthy that Dr Varma’s two applications for judicial review of that decision were both refused at the permission stage (see Ms Smerdon’s account of the proceedings, quoted above).

[30]In the event, as Mr Shaw observed, Dr Varma secured new legal representation for six of the remaining 11 hearing days and was also present in the building on at least one of those other days (see Ms Smerdon’s account of the proceedings). Furthermore, in order to accommodate Dr Varma and his new legal representatives, it was agreed that any GMC witness could be recalled for cross-examination. Although the GMC witnesses were scheduled to reappear for that purpose, none was actually recalled on Dr Varma’s own personal instructions to his new legal team.

[31]Having regard to all the foregoing, I am satisfied that the Panel was entitled to form the view that it did (i.e. that Dr Varma was able to participate meaningfully in the proceedings) on the medical and other evidence presented to it for the purposes of the application to stay the proceedings. In my judgment, in the light of that conclusion, the Panel’s exercise of its discretion in refusing a stay cannot be faulted. I am also satisfied that, in all the circumstances of the case, the Panel was right to decide to proceed with the substantive hearing, in the expectation that Dr Varma would not be present or represented, for the reasons that it gave. However, in the event, for much of the remaining hearing Dr Varma was represented and was, in the manner described above, given every opportunity to participate fully in the proceedings as a whole and, to a significant extent, did so through his legal representatives. For all those reasons, I have come to the conclusion that Grounds 1 and 2 of this appeal fail.

[32]Ground 3. Background Facts. On 18th June 2006, Dr Varma sent 3 lever arch files to the GMC’s Adjudication Section, requesting that they be put before the Panel when it resumed the hearing on 20th June 2006 (apparently, he also submitted them in a succession of emails on 19th June). The files in question contained a total of 1355 pages of documents and were without any index. At the time he originally submitted the files, it appears that Dr Varma believed that he would be unrepresented on 20th June. However, as it turned out, Mr Price-Rowlands appeared for Dr Varma from 20th June onwards. In the light of his appearance on that day, Mr Price-Rowlands was asked by the Chairman whether the Panel should look at the files. It was then agreed that the Panel should not do so and Mr Price-Rowlands “formally withdr[e]w that documentation on Dr Varma’s behalf.” From then on, until 14th September (see below), neither the GMC nor the Panel had access to the three files, which remained in the possession of Dr Varma and his legal team. At some stage the files were placed in a cabinet/cupboard in room DL6. Room DL6 was the room in the building set aside for use by Dr Varma and his legal team.

[33]Throughout the period that followed, up until close of business on 13th September 2006, Dr Varma was legally represented by counsel and solicitors: see Ms Smerdon’s account of the proceedings, quoted above. There was no further reference to the files or their contents by either Dr Varma or his legal representatives until 14th September 2006, by which date the GMC had closed its case and the Panel had retired to consider its findings of fact in private. However, at midday on 14th September, Dr Varma sent an email to the GMC in which he asked that the Panel read the files as his “written submissions”, but without specifying any particular document or documents. Dr Varma’s email was in the following terms:

“I write further to the email sent last night at 2340 and again today at 1140. In room DL6 in the cupboard there are 3 lever arch files of evidence that I wish to be placed before the committee as a matter of urgency as my written submissions to the panel. The committee as stated in the previous emails will need the employment tribunal bundle and I am assured that Mills and Reeve have a set of it.”

[34]As a result of Dr Varma’s email, the Panel reconvened and heard from the GMC’s counsel (Mr M. Taylor) and the Legal Assessor, who had looked at the files together with the GMC’s solicitor.

[35]When addressing the Panel about Dr Varma’s email and the files, Mr Taylor said this (inter alia):

“I say as counsel that I had no idea that these lever arch files had been left in the building by Dr Varma and neither had my instructing solicitors … and certainly no indication from counsel [for Dr Varma] that the bundles were to be left. … In the presence of the Legal Assessor we went to … room … DL6 … and there we found within a cabinet these three lever arch files. I have done no more than glimpse through them … and when I did so I had the Legal Assessor with me. My understanding of them is that essentially they are what might be considered to be instructions by Dr Varma to someone who was going to conduct the case on his behalf. They contain no doubt points for cross-examination, concerns, criticisms and matters of that sort. … You have heard no evidence in this case from Dr Varma or indeed anyone on behalf of Dr Varma and insofar as these three bundles contain points which might have possibly been dealt with in cross-examination of any of the witnesses relied upon by the General Medical Council if they had been recalled, an invitation, as you know, which was extended to Dr Varma and which he has rejected, we do not know what the answers of the doctor or the witnesses would be to any of these points, so to that extent the weight that you could attach to the contents of these lever arch files must perforce be limited. There are, however, other documents there referred to. … So I just say that just to give you a broad indication of the contents of these documents. I do not really understand why, if these documents are to be placed before you, they could not have been introduced by counsel on instructions before he left yesterday and he could have then at least explained to you what was to be contained in them. … I hope that is helpful to you. But the bundles are available. No doubt if the Legal Assessor considers it appropriate he could attempt some brief review of these bundles in order to see if there are some documents which should properly be drawn to your attention but for the reasons I have given at the moment I do not necessarily see that they should be.”

[36]The Legal Assessor then addressed the Panel and said this (inter alia):

“… You have heard Mr Taylor. As he said, I was there when he looked at the bundles. He has given you a summary of what is in the bundles. On what he says, the majority of the material seems to be points about each of the witnesses which could properly have been put in cross-examination if the witnesses had been recalled, but we know from yesterday a conscious decision was made not to cross-examine any recalled witness either by counsel or through Dr Varma in person. So the bundles are available if the Panel feels that it is necessary to look at them. Of course, they are of limited evidential value because none of the points in there … have been put to any of the witnesses and also if there is any case put forward by Dr Varma you have heard no evidence from Dr Varma.”

[37]Having considered the matter in private, the Panel then ruled in public as follows:

“Mr Taylor: An email has been sent to the General Medical Council addressed to Ms Rich and Ms Magill, dated 14th September 2006 and timed at 12:03. The e-mail purports to be from Sushant Varma. At the time at which the e-mail was received, the General Medical Council had concluded its case and the Panel was already in private session considering the allegations. You have addressed the Panel on the contents of the folders referred to in the e-mail and upon your brief scrutiny of the documents, in the presence of the Legal Assessor, concluded that they were mainly concerned with instructions about possible cross-examination of witnesses. In the light of your submissions, the Panel has determined that those documents would not be of assistance. The Panel also reminds itself of the advice of the Legal Assessor concerning the burden and standard of proof in relation to the allegations against Dr Varma. It is for the General Medical Council to prove the allegations so that the Panel is sure and that Dr Varma does not have to prove anything. … This will be communicated electronically to the e-mail address given by Dr Varma so that hopefully he is aware of our adjudication on this particular matter.”

[38]Accordingly, for the reasons given, the Panel did not read any of the documentation contained in the three lever arch files: see paragraph 22 of Ms Smerdon’s account of the proceedings, quoted above.

[39]The parties’ submissions. Mr Hyams submitted that, given the fact that Dr Varma did not attend the hearing before the Panel, the refusal by the Panel to read the documents put before it on 14th September 2006 was “insupportable”. Mr Hyams acknowledged that the files did contain a large quantity of irrelevant material, but it was his submission that the files also contained a number of relevant documents (a total of 45 out of the 1355 pages were identified as relevant: see tab 20 of the core bundle), including a refutation of the main charge against Dr Varma, namely that he had by deception obtained the signature of the Undergraduate Dean on a form and thereby obtained entry to the UEB examination, when he would not otherwise have obtained such entry. Mr Hyams contended that the Panel’s failure to read the relevant documentation was a fundamental procedural irregularity or was simply unfair. He also submitted, in effect, that the Panel’s conclusions on the charges were, in consequence, irrational and/or unreasonable because, having failed and/or refused to read the relevant documents, the Panel had arrived at its conclusions without having taken into account one or more of the relevant factors contained in those documents.

[40]For his part, Mr Shaw pointed out that the history of the proceedings clearly demonstrated that Dr Varma had been given ample opportunity to resubmit the files and/or to make appropriate use of any of the documents they contained after the files had been formally withdrawn from the Panel by Mr Price-Rowlands on 20th June. Mr Shaw stressed that Dr Varma was legally represented up to and including the 13th September, but that at no stage had there been any reference to or use made of any of the files in question or any of the documents they contained. By the afternoon of 14th September, the GMC had closed its case and the Panel had already retired to consider its findings of fact. Mr Shaw submitted that it was, by then, simply too late for Dr Varma to seek to rely on these files or the documents they contained, particularly when presented to the Panel in such an un-particularised fashion and with the 45 “relevant” pages scattered throughout a total of 1355 pages (of which the balance of 1310 pages were, by inference, irrelevant).

[41]In the circumstances of this case, I agree with Mr Shaw that it was completely unreasonable to expect the Panel to sift through these un-indexed files in order to identify the 45 pages that are now said to be relevant, particularly having regard to the complete absence of any guidance as to what Dr Varma considered to be relevant and why. In my view, that was all the more the case since the Panel was fully aware of and entitled to have regard to the fact that all the documents within the files had been available for appropriate use by Dr Varma and his legal team on each day of the hearing from 20th June up to and including 13th September. In my judgment, in all the circumstances and in the light of the submissions of Mr Taylor and the advice of the Legal Assessor, the Panel was entitled to decline to read the files for the reasons that it gave. Accordingly, I am satisfied that the Panel’s decision was not tainted by any procedural irregularity or unfairness and I reject Mr Hyams’ submissions to the contrary effect.

[42]In any event, I agree with Mr Shaw that the files were of no or (at most) very limited utility. For the reasons that follow, I do not accept Mr Hyams’ submission that the Panel failed to take account of one or more material factors as the result of its decision not to read the files.

[43]I agree with Mr Shaw that the files and/or the documents they contained could not have been used for the purpose of fortifying or establishing Dr Varma’s own case, because he had chosen not to give evidence and had advanced no case of his own, although he and/or his counsel had been provided with ample opportunity to put his case to the GMC’s witnesses and to call evidence on his own behalf: see Ms Smerdon’s account of the proceedings (quoted above) and Mr Shaw’s detailed summary of the “surrounding circumstances” as set out in paragraph 9 of his written skeleton argument.

[44]Furthermore, it appears that the majority of the contents of the files related only to cross-examination of the GMC’s various witnesses. As Mr Shaw pointed out, no request was ever made for any such witness to be recalled, despite the GMC’s agreement to such a course being taken and the necessary arrangements having been made for the witnesses to return. On the contrary, Dr Varma himself specifically instructed Mr Price-Rowlands not to request the recall of the GMC’s witnesses: see paragraph 9 of Mr Shaw’s skeleton argument.

[45]Next, as Mr Shaw observed, to the extent that the files contained instructions and comments, it must be assumed that Mr Price-Rowlands followed those instructions and/or utilised the comments as he saw fit. Insofar as any of the material was relevant to submissions (as distinct from evidence) there was ample opportunity for Mr Price-Rowlands to make any such submissions for the reasons already indicated.

[46]Finally, insofar as any of the material in the files was relevant to the later adjudication stages that were dealt with on 18th and 19th September 2006, the files and/or any of the documents they contained could have been used by Mr Price-Rowlands, who was in attendance and represented Dr Varma throughout those stages. Significantly, Mr Price-Rowlands made no reference whatsoever to any of the files or their contents: see paragraph 9 of Mr Shaw’s written skeleton argument.

[47]Accordingly, for the foregoing reasons, I am satisfied that the 3rd Ground of Appeal also fails.

[48]Ground 4. Mr Hyams submitted that the erasure of Dr Varma’s name from the register was not a proportionate response and/or sanction in all the circumstances of the case. It was his submission that Dr Varma should have been asked to undergo a further medical examination and should then have been required to work under supervision for a period of time, if he was able to obtain a post in which he could finish his training.

[49]As Mr Shaw observed, the correct approach for the Court on an appeal against sanction has recently been stated by the Court of Appeal in Raschid v GMC

(2007) 1 WLR 1460

(hereafter “Raschid”), per Laws LJ, who said this:

“16. As it seems to me there are in particular two strands in the relevant learning … 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. … 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 … 20. … the High Court will correct the material errors of fact and 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. … 26. … I have to say that [the judge’s judgments] do not in my view remotely offer sufficient recognition of the two principles which are especially important in this jurisdiction: the preservation of public confidence in the profession and the need in consequence to give special place to the judgment of the specialist tribunal …”

[50]Mr Shaw stressed that the Panel had had explicit regard to the GMC’s Indicative Sanctions Guidance, which, under the heading “Erasure” in section 1, provides:

“39. There are some examples of misconduct where the Privy Council has upheld decisions to erase a doctor despite strong mitigation … The three most serious areas of concern are: … b Dishonesty … Dishonesty 43. The GMC’s Guidance”

Good Medical Practice” states that registered doctors must be honest and trustworthy. 44. Dishonesty, even where it does not result in direct harm to patients but is for example related to a doctor’s private life, is particularly serious because it undermines the trust the public place in the profession. Examples of dishonesty in professional practice could include … inaccurate information or misleading information on a CV and failing to take reasonable steps to ensure that statements made in formal documents are accurate. … b Dishonesty …

[51]Mr Shaw also referred to the illustrations of misconduct likely to warrant erasure that are given in section 1 of the Sanctions Guidance, which include “dishonesty (especially where persistent and covered up)” and “persistent lack of insight into seriousness of actions or consequences.” Mr Shaw then drew attention to paragraph 16 of section 1, which contains a section on proportionality that the Panel confirmed it had borne in mind, and referred to paragraph 19 of section 2, which stresses that insight is an important factor in a hearing such as the present.

[52]Mr Shaw submitted (correctly, in my view) that the Panel had been right in deciding to take a serious view of the facts found proved (none of which is challenged on appeal), for the following reasons.(i) Almost all 13 heads of charge had been found proved and the established facts revealed a pattern of dishonesty persisted in for a period of almost 2 years.

(ii) The Panel noted that the “number, level and nature” of the findings demonstrated “fundamental failures” and a “serious breach of the principles and the standards of conduct that the public is entitled to expect”.

(iii) The Panel also stressed that dishonesty was the “recurrent theme” running through Dr Varma’s misconduct and concluded: “Whilst there is no evidence of patient harm there is evidence that Dr Varma has been persistent in making false assertions against colleagues. The Panel considers that there is evidence of a deep-seated attitudinal problem. Throughout this hearing it has not been demonstrated that Dr Varma has any insight into the matters which have brought him before the GMC. Dr Varma’s dishonesty pervades more than one area and the Panel has found that such dishonesty has been premeditated, persistent and covered up. The most serious act of dishonesty being his gaining entry to sit the LMSSA examination without the support of his Undergraduate Dean.”

(iv) Without at least some insight on the part of Dr Varma, the Panel was rightly concerned that the misconduct would be repeated.

(v) The Panel specifically considered, but rightly rejected, the imposition of conditions or a period of suspension: see paragraphs 22 to 30 of section 1 of the Indicative Sanctions Guidance.

(vi) The gravity of Dr Varma’s misconduct was also reflected in the Panel’s unchallenged direction for the immediate suspension of his registration (thereby preventing him from practising in the period pending the determination of his appeal).

[53]In the light of the foregoing and having regard to the two applicable principles identified in Raschid, I am completely satisfied that there is no arguable basis for challenging the Panel’s decision that Dr Varma’s name should be erased from the register. On the contrary, having regard to the nature and extent of the charges that had been found proved, it seems to me that the Panel’s decision to that effect was entirely correct.

[54]Accordingly, this final ground of appeal also fails.

[55]Conclusion. For the foregoing reasons, I have come to the firm conclusion that this appeal must be and is hereby dismissed.

Cited in 1 later judgment

Li, R (on the application of) v General Medical Council 2013