Udom v General Medical Council [2009] EWHC 3242 (Admin)

[2009] EWHC 3242 (Admin)Case No CO/6125/2009
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 2nd December 2009
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE HICKINBOTTOM
Between
DR OLUMIDE BASSEY UDOMAppellantv
Between
GENERAL MEDICAL COUNCILRespondent
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company265 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mary O'Rourke QC (instructed by Nabarro) appeared for AppellantLynn Griffin (instructed by General Medical Council) appeared for Respondent
J U D G M E N T
[1]MR JUSTICE HICKINBOTTOM: This is an appeal is brought by Dr Olumide Bassey Udom under section 40 of the Medical Act 1983 as amended ("the 1983 Act") against the decision of the Fitness to Practise Panel of the General Medical Council ("the GMC") made on 19 May 2009. The Panel made four separate determinations that day: a determination on impairment, a determination on sanction, a determination on whether the sanction should be immediate, and finally a determination amending the proposed conditions following further submissions in relation to them.[2]The Panel found that the Appellant's fitness to practise was impaired by reason of both deficient professional performance and his physical or mental health, and directed that his registration be subject to conditions for a period of 9 months with immediate effect. With regard to the conditions, the determination on sanction stated (at pages 7-8): "The following conditions relate to your practice and will be published...", and then set out conditions in twenty numbered paragraphs. The appeal relates solely to that sanction, and in particular to the conditions imposed.[3]The Appellant was born and brought up in Western Nigeria. He went to the University of Ibadan, where he qualified in medicine in 1984. He came to England in 1989, and obtained his membership of the Royal College at the third attempt. He then worked in anaesthetics in a number of hospitals in the United Kingdom, before spending 3 years in Saudi Arabia. He returned to the United Kingdom in 1998 and, following 18 months of locum jobs, was appointed as a Consultant Anaesthetist at Grantham Hospital in 2001. He occupied that post until July 2005, when he was employed by the Sherwood Forest Hospitals NHS Trust ("the Trust") as Consultant Anaesthetist with a special interest in intensive care at Kings Mill Hospital, Mansfield.[4]In May 2006 there was an allegation made against the Appellant that he had failed properly to monitor a patient post-operatively, and the patient had suffered a bleed. As a result, the Appellant was, first, referred to the GMC by the Trust in a letter dated 6th November 2006; and, second, excluded by the Trust until May 2007, when a Capability Hearing took place. During that period (May 2006-May 2007), he did not work or even enter the hospital premises. The hearing found that he had failed in the management of two cases, although neither patient suffered an adverse outcome. He was reinstated in June 2007, but under conditions of supervision.[5]In August 2007 he was called to attend a GMC Performance Assessment which reported on 24 September 2007. In the knowledge test, the Appellant scored 57.69 per cent, which was slightly above the minimum level but well below the majority of his peers. Only three others had scored lower than he, and none of those was working as a consultant. In the ten Objective Structured Clinical Examinations ("OSCEs") that were the subject of the assessment, his performance was rated as unacceptable. Not only was it well below the mean of his peer group, but he fell below the minimum standard of the Royal College of Anaesthetics in eight of the ten examinations. The report concluded, with regard to the Appellant's performance, that his knowledge base was lower than his peer group and just above the minimum acceptable score, and he performed below the minimum acceptable standard in most of the OSCEs.[6]The assessment concluded that the Appellant's performance was deficient and unacceptable in some areas (assessment of patients' condition, providing or arranging treatment and record keeping); and a cause for concern in others (communication with patients, treatment in emergencies, working within limits of competence and relationships with colleagues/team work). It recommended that the Appellant should not work as an unsupervised consultant.[7]The assessment triggered a second Capability Hearing in May 2008, which resulted in his dismissal by the Trust. The Appellant's case was also referred to a Fitness to Practise Panel to consider whether his fitness to practise was impaired by reason of his deficient professional performance. Following receipt of a report from a Consultant Psychiatrist (Dr Adrianne Reveley), that reference was expanded to include possible impairment by reason of adverse physical or mental health. In the meantime, an interim order was made on health grounds suspending his medical registration.[8]The hearing before the Panel took place on 19 May 2009, by when the Appellant had only worked for a few weeks during the previous 2 years. In addition to Dr Reveley's report, the Panel had the benefit of reports and oral evidence from two medical examiners - both Consultant Psychiatrists - Professor Elemer Szabadi and Dr Michael Harris, and from Dr Raheel Aziz, the Appellant's treating consultant psychiatrist. Those experts agreed that, as a result of stressful life events (including events at work, and the death of his brother), the Appellant was suffering from a depressive episode, and Professor Szabadi diagnosed him as also suffering from adjustment disorder. As the Panel noted (at page 7 of their determination on impairment), Professor Szabadi, Dr Harris and Dr Aziz all "agreed that, from a health point of view, in general terms, [the Appellant is] currently fit to practice under supervision". The Panel expressed concern at the length of time the Appellant took to recognise his illness and seek help, despite advice to do so; and the fact that he had not, even at the time of the hearing, begun the psychological treatment that Dr Aziz considered essential for the Appellant's recovery.[9]The Panel consequently determined that the Appellant's fitness to practise was impaired by reason of the Appellant's physical or mental health.[10]In relation to performance, the Panel was "of the view that it [had] received oral and documentary evidence to suggest that the assessment highlighted serious deficiencies across a broad range of areas in [the Appellant's] practice relating to [his] knowledge, experience and technical skill" (page 10 of the determination on impairment). It had the benefit of a Specialist Performance Adviser (Dr Christopher Greenhalgh, a Consultant Anaesthetist). In the determination on impairment, the Panel said (again at page 10):
"The Panel has noted the advice of the Specialist Performance Adviser. Amongst other things, he advised the Panel on basic skills for anaesthesia. His advice was that there is evidence to suggest that you lack certain basic skills and that this is worrying and that it has direct implications for patient safety. The Panel accepts and agrees with this analysis."
I shall return to the role of Dr Greenhalgh, and other advice that he gave the Panel, which are the subjects of complaint by the Appellant in this appeal.[11]Of the relationship between the Appellant's health and performance, the determination continued:
"The Panel recognised that there may be an interlinking of your health and your poor performance at the assessment. This was supported by evidence from your wife as to the state of your mental heath at the time. In their evidence the assessors stated that there was one occasion relating to an index case, where you became very upset. Otherwise, they did not note any indication of stress greater than they would normally expect in what are recognised to be stressful circumstances."
[12]And it concluded, "The Panel has considered all the relevant evidence at the time that the performance assessment took place, and it considers that your adverse physical or mental health does not fully explain your deficient professional performance" - the Panel finding that the Appellant's fitness to practise was impaired by reason of his deficient professional performance, which presented a potential risk to patients.[13]None of the Panel's findings in their determination on impairment (including the findings that the Appellant's fitness to practise was impaired, and the reasons for that impairment) is contested by the Appellant.[14]The Panel then proceeded to hear submissions on appropriate sanction, which is governed by section 35D(2) of the 1983 Act. That provides:
"Where the Panel find that the person's fitness to practise is impaired they may, if they think fit— (a) except in a health case, direct that the person's name shall be erased from the register; (b) direct that his registration in the register shall be suspended (that is to say, shall not have effect) during such period not exceeding 12 months as may be specified in the direction; or (c) direct that his registration shall be conditional on his compliance, during such period not exceeding 3 years as may be specified in the direction, with such requirements so specified as the Panel think fit to impose for the protection of members of the public or in his interests."
[15]This was "a health case", the Appellant's health being one cause of impairment to his fitness to practise: so erasure was not open to the Panel in this case. It was common ground between the parties that "no action" would be inappropriate in this case, a view with which the Panel understandably agreed (see determination on sanction, page 4). Possible sanctions open to the Panel were therefore suspension or the attachment of conditions to his registration under section 35D(2)(b) and (c) respectively.[16]The hallmark of suspension is identified in subsection (b) itself: for a determined period, the registration of the relevant doctor is divested of all effect. Registration allows a doctor to practise medicine, in the sense of being able to do what unregistered people cannot do. Suspension "prevents the doctor from practising... during the period of suspension" (GMC's Indicative Sanctions Guidance (April 2009) ("the Sanctions Guidance") at paragraph 69).[17]Conditions on registration presuppose that the doctor will continue to be effectively registered and will continue to practise, but subject to conditions that enable him to deal with his health or deficiency issues whilst protecting patients, as well as the integrity of the medical profession, from harm (Sanctions Guidance, paragraph 51). Any conditions imposed "should be appropriate, proportionate, workable and measurable..." (paragraph 54); and, in deciding whether conditions might be appropriate, the Panel need to satisfy themselves that "it is possible to formulate appropriate and practical conditions to impose on registration" (paragraph 55).[18]The primary object of imposing a sanction is to maintain the standing of the profession and the confidence of the public in the profession, although the need to protect individual patients (in terms of ensuring no repetition) is also a purpose (see Report of the Committee of Inquiry into the Regulation of the Medical Profession (1975), Bolton v The Law Society [1994] 1 WLR 512, especially at pages 518-9, Raschid and Fatnani v General Medical Council [2007] EWCA Civ 46 at [18] and Cheatle v General Medical Council [2009] EWHC 645 (Admin) at [33]). The impact of the sanction on the practitioner is also relevant, because the Panel can only impose a sanction that is proportionate. But, as the primary objectives concern the wider public interest, the impact of a sanction on a practitioner has been said not to be "a primary consideration" (Cheatle at [38] and [40]). Those principles are broadly reflected in the Sanctions Guidance (especially at paragraphs 18-22), and are set out by the Panel in their determination on sanction (at page 2).[19]An appeal from the Panel to this court is by way of re-hearing, rather than review. An appeal will be allowed if the court is satisfied that the Panel were wrong. However, the Panel are a professional disciplinary tribunal, whose professional judgment (especially with regard to sanctions) is worthy of considerable respect. This court is therefore slow to interfere with a sanction imposed by the GMC, and will do so only where the Panel's decision is "clearly inappropriate" (see the cases I have already cited, especially Cheatle at [15] and [35]).[20]Miss O'Rourke QC for the Appellant submitted that the Panel's determination on sanction in this case was wrong on two main, interrelated bases. First, she submitted that the conditions imposed were such that they robbed the Appellant's registration of all effect, so that he could not practice medicine at all during the nine-month period for which the conditions applied. Such conditions were unlawful because(a) conditions could not be imposed that denied the doctor any and all ability to practise medicine, because in substance that would be a suspension rather than a conditional registration; and(b) by imposing conditions over and above effective suspension, the Panel breached section 35D(2) of the 1983 Act which permitted suspension of registration or conditions on registration, but not both. Second, she submitted that Dr Greenhalgh went beyond the proper scope of a Special Performance Adviser to the Panel by giving his personal opinion evidence on, for example, how long the Appellant would need to be "retrained" by way of clinical attachment. There was no opportunity to challenge that evidence, and no other evidence available to the Panel on that issue. In those circumstances, she submitted that the Panel acted unlawfully in considering and accepting the Adviser's evidence. Those grounds are related because Miss O'Rourke submitted that the Panel erred in making the conditions emasculating the Appellant's registration referred to in the first ground, because they accepted Dr Greenhalgh's evidence which forms the basis of the second ground. However, the grounds can sensibly be considered separately, which I propose to do.[21]As to the first ground, the focus of Miss O'Rourke's submissions was that the conditions imposed went beyond mere effective suspension of registration, because they imposed additional obligations on the Appellant that would not fall upon someone suspended, for example to prepare and forward a Personal Development Plan to the GMC (Conditions 5 and 6), to meet with his Postgraduate Dean (Condition 7), and to allow the GMC to exchange information on personal performance with the Postgraduate Dean (or anyone else involved in the Appellant's retraining (Condition 8)). As section 35D(2) of the 1983 Act permitted a panel to suspend a registration or attach conditions to a registration, but not both, the sanction imposed was unlawful, as being in breach of that section.[22]She submitted that these consequences flowed primarily from Condition 11, which reads: "You must confine your medical practice to National Health Service clinical attachment or attachments of not less than 12 weeks in total, where your work will be supervised by a named consultant. Any of these attachment(s) should be of at least 3 weeks' duration and should be in accordance with the GMC's 'Guidance on the use of clinical attachments'".[23]Miss Griffin, for the GMC, initially submitted before me that, although in practice most of those who undertake clinical attachments (such as foreign doctors) are not registered with the GMC, the sanction imposed upon the Appellant did not take away his registration, in either form or substance; and, subject to the approval of his supervising consultant, he would be able to perform any clinical duties allowed by his registration during the course of any clinical attachment. During the course of argument, as I understood her, Miss Griffin conceded that that was not in fact the intent or effect of the conditions imposed upon the Appellant, a concession which I consider was properly made. Certainly, I could not accept her initial submission for the following reasons.[24]Condition 11 restricted the Appellant's clinical activity during the nine-month period to "clinical attachments". The Panel made clear what they meant by "clinical attachment", namely "the exact definition" as used in the GMC's Glossary of Terms Used in Fitness to Practise Action, which is incorporated by reference into the GMC's Guidance on the Use of Clinical Attachments, and which states (as quoted by the Panel in their determination on sanction, at page 5):
"Clinical attachments are purely observational (therefore the doctor does not require registration)..."
That emphasises the fact that it is a characteristic of such attachments that a doctor on clinical attachment is not able to undertake any of the duties of a registered medical practitioner, and the Panel were using the concept of clinical attachment in that conventional sense. That is underscored in Condition 11 itself, where there is specific reference to the fact that any clinical attachments undertaken by the Appellant "should be in accordance with the GMC's 'Guidance on the use of clinical attachments'".[25]That Guidance confirms that doctors undertaking clinical, attachments "carry no responsibility or authority for making decisions, or providing advice, in relation to patients' treatment" (paragraph 1), and, although after a period of observation they may be allowed by their supervisor to take on some clinical duties themselves, it makes it clear that this will be restricted to "observing consultations and participating in patient checking, history taking and physical examinations (where appropriate and always under supervision)" (paragraph 2), i.e. clinical activities that anyone can perform without registration.[26]Therefore, by virtue of the definition of "clinical attachment" adopted by the Panel alone, the intention and effect of the determination on sanction was clearly to limit the Appellant's clinical experience for 9 months to observation and work that did not require registration to perform. In substance, for that period, it forbade him to practise medicine at all.[27]That intention and effect are confirmed by a reading of the determination on sanction as a whole. For example, it says (at page 6):
"... the Panel considers that in the demanding and stressful specialty of anaesthetics, a clinical attachment is essential as a first step in your return to practise. The Panel has concluded in the light of all the evidence that it would not be appropriate for you to return to supervised work until you have undertaken a clinical attachment, followed by a review hearing. The Panel determines that to allow you to practise, even under stringent conditions, without first being reviewed by a future Panel, would not be in the best interest of patients or in your own interest. The Panel recognises that this might be seen as so restrictive as to amount to suspension. The Panel considers that it would be unsafe at this stage to allow you to practise even under supervision. Allowing you to observe and learn from others is in your own interest and that of patient safety. If this were not possible conditions would not have been appropriate and the only alternative would have been suspension."
[28]The Panel clearly indicate here that the conditions are such as to amount to a suspension in effect, in that, during the period during which the conditions apply, the Appellant is forbidden to do anything that registration allows him to do. As I have said, that was both the intention and effect of the conditions.[29]Because clinical attachments are, in the words of the GMC Glossary Definition quoted by the Panel (determination on sanction, page 5), "purely observational... there is little opportunity for the doctor to show their knowledge or skills". The caution expressed by the GMC's Guidance on the Use of Clinical Attachments in cases such as the Appellant's is therefore understandable. That Guidance says that "Panels should be wary of making conditional orders where the doctor is required to limit their practice to clinical attachments"; and that "the GMC views clinical attachments as a device which should be used only rarely by Fitness to Practise Panels" (paragraph 4). It continues (at paragraphs 5 and 6):
"5. For doctors with deficient performance, it is difficult to envisage the circumstances when a clinical attachment would be appropriate as, in the overwhelming majority of instances, the panel will either wish to set clear boundaries on the extent to which the doctor may practise and the degree of supervision required, or will need to make an order for suspension... However, for doctors who... have been out of UK practice for many years, there may be occasions where a short clinical attachment is of benefit to their rehabilitation into part-time or full-time work. 6. If a panel does set a condition limiting the doctor's practice to clinical attachments they should expect to review the order after a short period - not normally longer than 6 months - in order to evaluate the doctor's progress and capacity to move from clinical attachment to supervised practice."
The distinction drawn in paragraph 6 between "clinical attachment" and "supervised practice" again emphasises that "clinical attachment" does not envisage any practice, supervised or a fortiori not supervised, that requires registration. It is limited to observation, notation, discussion with a supervisor, and interaction with patients in a clinical context, short of anything for which registration with the GMC as a doctor is required. Furthermore, that paragraph indicates that any clinical attachments that are considered appropriate in a rehabilitation context are likely to be short, and subject to early review, within 6 months, for the good reason that progress towards rehabilitation is likely to be, at best, very slow, if the doctor cannot practise, even under supervision, during its course. That is even more so in a field such as anaesthetics which, it was common ground before the Panel and me, is quintessentially a hands-on discipline involving the choice, prescription and physical administration of drugs for the purposes of anaesthetising a patient, none of which can be performed within the limits of a clinical attachment or other than under registration.[30]However, it does end there, submitted Miss O'Rourke, because not only did the conditions deny the appellant any rights or benefits of registration, they went on to impose specific obligations upon, first, the Appellant and, second, the supervising consultant and his employer that would make the Appellant a particularly unattractive candidate for any clinical attachment - less attractive than someone who was suspended without these additional obligations. I have already referred to some of those additional obligations. She submitted that this was not only contrary to section 35D(2) of the 1983 Act, which enables a panel to impose a suspension or conditions on a registration (but not both), it was also contrary to the GMC's own Sanctions Guidance which, as I have already indicated, requires conditions to be "appropriate, proportionate [and] workable..." (Sanctions Guidance, paragraph 54).[31]In my judgment, the Panel did err in law in their approach to section 35D(2) of the 1983 Act. As I have said, subsections (b) and (c) are based on different and mutually exclusive premises. The former (suspension) is based upon the premise that in substance registration, and hence the ability to practise cease, at least temporarily. The latter (the imposition of conditions) is based upon the premise that in substance registration, and hence the ability to practise, continue, but are restricted. They are alternatives - hence the word "or" that joins them - precisely because they are mutually exclusive. It is logically impossible to have conditions limiting the ability to practise medicine attaching to a registration that is of no effect. If conditions are such that they divest registration of all effect, then that cannot properly be called a "conditional registration". In substance, it is no registration at all.[32]And in my judgment, it is a matter of substance, and not simply form. I do not consider that a panel can undermine this statutory structure by bringing to an end the ability to practise through the imposition of conditions under subsection (c), rather than suspension under subsection (b). It cannot have been the intention of the provisions that a panel could do that because, if registration could be brought to an end for a period of time by way of a conditions, then subsection (b) would be otiose and empty - and it is a tenet of statutory construction that some substance should be given to each provision. Still less could it have been the intention of Parliament, in the face of the clearly disjunctive subsections (b) and (c), that conditions could be used to emasculate registration and impose yet further obligations on the relevant doctor. Leaving aside the practical difficulties that this may impose upon that doctor, to which Miss O'Rourke referred, it is simply not a construction open on the face of the statutory provisions.[33]That proper construction does not allow for a suspension of a registration, coupled with further obligations imposed upon the doctor. I do not consider that it is any answer for the GMC to say (as the Panel in this case did, and as Miss Griffin submitted) that one reason for the imposition of the conditions was that they were for the Appellant's own good in terms of rehabilitation. In other words, he was more likely to be rehabilitated as a doctor if he were made to pursue clinical attachments subject to the obligations set out in the conditions imposed by the sanctions determination. The Appellant happens to disagree in this case - he considers he would stand a better chance of rehabilitation if he were suspended and had more freedom to arrange clinical attachments etc - but in any event the focus of this regime is not paternalism for doctors, but rather for the protection of the public and the integrity of the profession, which can equally be maintained by a suspension of the relevant doctor. In the face of the clear provisions of the statute, there is no room for a construction that allows a panel effectively to suspend a doctor and also impose conditions upon him that arguably may assist his own rehabilitation. If that were the true construction, then all cases in which a panel intended to take from a doctor the ability to do what registration authorises him to do in terms of clinical practice, could and would be done by way of conditions that could both take away the effects of registration completely, whilst imposing upon the doctor a regime that would (in the panel's view) maximise that doctor's opportunities to rehabilitate and return to practise. Indeed, if that were the true construction, they could do so and effectively suspend the registration of a doctor for a period of 3 years, rather than 12 months. Paternal and good as the intentions of the GMC might be, that is simply not the statutory scheme.[34]I also consider that the determination on sanction exhibits confusion in the minds of the Panel, or at least internal inconsistencies. As I have indicated, they clearly intended to take away from the Appellant all rights of registration, and the ability to do that which registration is required for. In addition to prescribing drugs etc, registration is required for employment as a doctor. However, Conditions 1 and 2 refer to what must happen if the Appellant were so employed. Those conditions (certainly as originally drafted, when there was reference to "any post which you accept for which registration with the GMC is required (including any clinical attachment)") are inconsistent with Condition 11.[35]For those reasons, I consider the Panel in this case erred in law in applying conditions which resulted in the emasculation of the Appellant's registration, with further conditions as to his conduct towards his rehabilitation as a doctor. In my judgment, as a result of that error, the sanction imposed by the Panel was clearly "wrong".[36]In the light of my conclusions in relation to the first ground, which in my judgment are determinative of the appeal, I can deal with the second ground quite shortly.[37]The role of assessors appointed to hearings of Fitness to Practise Panels was considered by Stanley Burton J (as he then was) in Watson v General Medical Council [2005] EWHC 1896 (Admin). As he pointed out (in paragraph 42) the status of an assessor is unusual. He "is not a member of the tribunal, but neither is he a witness or a party". An assessor cannot give evidence, or express personal views; he can only give advice to the panel on the medical significance of information before the panel. An assessor must therefore be careful not to stray either into giving evidence (the province of witnesses), or making decisions (the province of the panel themselves). Where advice might be controversial, it may be incumbent upon the panel to give the parties an opportunity to submit their own evidence in respect of it (Watson at paragraph 60). Whilst the proper scope for an assessor may be difficult to identify, as Stanley Burnton J said in Watson (at paragraph 69, "some line[s] must have been intended". "Special performance advisers" appointed under Rules 3 and 17(4) of the General Medical Council (Fitness to Practise) Rules 2004 are assessors in the sense of that term as used by Stanley Burnton J.[38]Miss O'Rourke submitted that Mr Greenhalgh had failed to stay on the straight and narrow path required of an assessor when he acted as specialist performance adviser to the Panel in the Appellant's case, by giving his own views - his own evidence - as to the Appellant's particular requirements in terms of rehabilitation.[39]I do not accept all of the criticisms she made. For example, although Dr Greenhalgh said that he believed that "at some stage in the future [the Appellant] will have to undergo a formal assessment of his competencies" (19 May 2009 transcript page D6/19), as Miss Griffin submitted, that was uncontentious: it was common ground between the parties before the Panel. There can be no proper criticism of him over that.[40]However, I am concerned at what Mr Greenhalgh said in response to a question from a Panel member concerning what that member described as "the [Appellant's] period of observership", a phrase which yet again reinforces that the Panel were considering a period in which the Appellant would be unable to do clinical work for which registration was required. He responded that he thought that "in the region of 3 months" observing would be appropriate (transcript, page D6/30G).[41]But, there had been no evidence as to that. From a health point of view, the experts (including Dr Aziz, the treating psychiatrist) generally considered that the Appellant was fit enough to resume some supervised work, at sub-consultant level (Professor Szabadi, Report 3 November 2008 paragraph 4, and 19 May 2009 transcript page D1/26E-F; Dr Harris, transcript page D1/l3C; and Dr Aziz, transcript page D4/12E). The Panel acknowledged that all three agreed that, from a health point of view, the Appellant was fit to practise under supervision (determination on impairment, page 7). From a performance point of view, those involved in the Performance Assessment considered the Appellant could work at sub-consultant grade supervised (Mr Campbell, the Performance Assessment Team Leader, transcript page D2/20-21). The Panel of course had to consider both health and performance aspects. The Appellant himself considered that, having been away from practical medicine for so long, a clinical attachment would be helpful and, generally, those experts to whom that was put agreed, although none of them gave evidence as to how long such attachment should be, nor were they asked about it. Without speculating, in the light of the GMC's own guidance, to which I have referred, it may have been assumed by some that an attachment prior to supervised clinical work would have been short. In any event, Miss O'Rourke made submissions that 3 months was too long (transcript page D6/21G); but of course she was unable to cross-examine or otherwise question that evidence of Dr Greenhalgh - for evidence it was - and it was too late for her to respond with any further evidence of her own. The Panel accepted the evidence of Dr Greenhalgh, which was translated into a minimum of 12 weeks' clinical attachment in Condition 11.[42]Whilst I do not consider the point clear-cut, in my judgment, in giving his own view of the appropriate length of clinical attachment for the Appellant, Dr Greenhalgh went beyond the proper scope of an adviser to the Panel, as warned of by Stanley Burnton J in Watson. In my view, he went beyond an explanation of "the nature of procedures or practice in the doctor's speciality" (see the GMC's Guidance for Specialist Advisers, paragraph 11). He was not simply advising on the medical significance of information before the Panel - there was no relevant evidence or information - he was giving his own personal opinion on the length of clinical attachment he considered appropriate in the Appellant's case, an opinion accepted by the Panel. Although not apparent from the face of the determination, as I understood the submissions of Miss Griffin, the period of the conditions (i.e. 9 months) was also in part founded upon Dr Greenhalgh's evidence, as the Panel considered, amongst other things, that it would realistically take the Appellant 9 months to find and perform 3 months of clinical attachments. None of the evidence called by the parties supported a restriction to clinical attachments only and no supervised work as a medical practitioner, and certainly there was no evidence that either the period of clinical attachment should be 3 months or that the period without an ability to practise at all should be 9 months. The Panel did not explain why they considered a period of 9 months for the conditions appropriate in the light of the GMC's own guidance that such orders should normally be reviewed after 6 months at the most.[43]In accepting that evidence of the adviser, in my judgment the Panel made a further error of law. Again, it was substantive. The Appellant was denied a fair hearing because he was unable properly to test or respond to that opinion.[44]For those reasons I consider the Panel's determination on sanction was legally flawed, and wrong. I allow the appeal. The parties agreed that, if that were my finding, it would not be appropriate for me to substitute my own conditions for those of the Panel. I agree. The Panel thought, in substance, that the appropriate sanction was to prevent the Appellant from doing clinical work that required registration (i.e. a suspension) for a further period. In those circumstances, it will be for a new panel to consider the appropriate sanction in the Appellant's case. Subject to further submissions, I would have thought that the determination on impairment can stand as it is - it has not been the subject of any appeal - but I will remit the matter for consideration of sanction by a differently constituted panel, on the basis of the undertaking offered by the Appellant not to practise in the meantime in terms which, I hope, can be agreed between the parties. I will hear submissions on the form of the order generally.[45]Finally, can I thank you both for your assistance with the case, particularly, if I may say, Miss Griffin, you. Nothing in the judgment reflects upon the way you argued the case, which could not have been better put.

Cited in 1 later judgment