Khan v General Medical Council [2009] EWHC 535 (Admin)

Case No CO/979/2008[2009] EWHC 535 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 27th February 2009
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE CRANSTON
Between
DR DAUD BASHARAT KHANAppellantv
Between
THE GENERAL MEDICAL COUNCILRespondent
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Martin Wynne Jones (instructed by Reid Sinclair & Co) appeared for AppellantKate Gallafent (instructed by the General Medical Council) appeared for Respondent
J U D G M E N T

MR JUSTICE CRANSTON: Introduction

[2]The appellant appeals against a determination of a Fitness to Practise Panel of the General Medical Council (a "Panel"). On 3rd January 2008 a Panel decided that his fitness to practise was impaired and that he should be suspended from registration for 12 months. The appeal is brought pursuant to section 40(1) of the Medical Act 1983. A general issue which arises from the appeal is whether a Panel, conducting a review hearing of a doctor conditionally registered, is limited to considering whether there has been a failure to comply with the conditions, or whether it can also consider that his fitness to practise has been impaired. Background[3]The appellant is a doctor and sole practitioner at his surgery in South West London. He began practice in the London Borough of Wandsworth in 1972 and he moved to his current surgery in 1994. He is 67 years old. He has a practice of approximately 3,000 patients. Following a complaint, a Fitness to Practise Panel was convened in 2006.[4]The background is that in September 1997 the NHS Pension Scheme was opened up to GP practice staff. After that, general practitioners were responsible for sending both employer and employee contributions to the Pensions Agency. General practitioners could then claim reimbursement of the employer's contributions from their health authority or Primary Care Trust. From April 1998 to July 2003 the appellant submitted claims for reimbursement to the Wandsworth Primary Care Trust in respect of practice staff and expenses, which included claims for the reimbursement of the employer's pension contributions. On occasions the appellant confirmed that particular members of staff were within the NHS pension scheme and, from November 2000, he certified that payments claimed by him were a true record of payments made by the practice to its staff and the NHS Pensions Agency. As a result, from April 1998 to July 2003 he was reimbursed some £12,500 by the Trust in respect of employer's pension contributions. However, during this period he did not make any contribution payments to the Pensions Agency. In fact, in August 2000 he certified to the Pensions Agency that his practice had no members of staff participating in the pension scheme.[5]On this basis, the Panel found that he knew, or ought to have known, that pension contributions were not being made to the Pensions Agency and that he was not entitled to reimbursement from the Trust. He was obliged to take reasonable steps to verify any statement before signing a document and, in August 2000, had certified that his practice had no staff participating in the scheme. Despite informing the health authority on 18th December 2001 that the "areas of deficiencies had been addressed", he continued to claim reimbursement of employer's pension contributions from the Trust. The Panel found that his actions were inappropriate and dishonest and that, therefore, his fitness to practise was impaired because of misconduct. The Panel said this: "The Panel is most concerned about your reckless attitude towards important administrative matters. General practitioners are under an obligation to ensure that the management of their practice is undertaken in an honest, efficient and reliable manner. The Panel has heard that you left all administrative matters in the hands of your practice manager, whom you trusted and that you simply signed papers when requested to do so without examining the contents of those documents. The Panel considers that the accuracy of any documents which you sign is your responsibility and that you have a duty to check the contents of any documents that you sign so as to be certain that the information they contain is correct. Furthermore, the Panel is concerned that this was not an isolated incident and that you persisted in making claims for reimbursement of pension contributions over a number of years, even when you knew, or should have known, that none of your staff were included in the pension scheme. The Panel concluded that you placed altogether too much uncritical reliance on your practice manager when you were the responsible medical practitioner, subject to the relevant rules of the NHS and the regulatory framework of the GMC. In all the circumstances, and having applied the relevant tests, the Panel has concluded that your fitness to practise is impaired pursuant to section 35C(2)(a) by reason of your misconduct" (page 253 of the main bundle). The Panel accepted that the acts of dishonesty found were at the lower end of the scale, and that although he was guilty of a cavalier and reckless attitude towards administrative tasks and financial matters, he had not deliberately set out to defraud. The Panel also concluded that his actions were not calculated to achieve personal gain. The Panel was conscious of the fact that no issues relating to his clinical practice or abilities had been raised and there was no risk of safety to patients.[6]In relation to sanction the Panel determined to impose conditions on his registration for a period of 18 months. The conditions were nine in number:
"1. You must notify the GMC promptly of any post you accept for which registration with the GMC is required and provide the GMC with the contact details of your employer and of the PCT on whose Medical Performers List you are included. 2. You must allow the GMC to exchange information with your employer, or any organisation for which you provide medical services, and any individual involved in your supervision. 3. You must inform the GMC of any formal disciplinary proceedings taken against you, from the date of this determination. 4. You must inform the GMC if you apply for employment outside the UK. 5. You must work with a Director of Postgraduate General Practice Education (or their nominated deputy) to formulate a Personal Development Plan specifically designed to address the deficiencies in the following areas of your practice: practice management, with particular reference to financial responsibilities and the delegation of tasks to practice management staff. You must also attend any relevant courses as advised by the Director. 6. You must agree to the appointment of a mentor, as advised and/or approved by your Director of Postgraduate General Practice Education (or their nominated deputy) to give you support and advice. 7. After discussion with your mentor, you should arrange to attend at least two other practices to observe their practice management arrangements. 8. You must ask your Primary Care Trust to undertake a management audit of the administrative systems in your practice to ensure that the deficiencies in the management of your practice have been addressed. 9. You must inform the following parties that your registration is subject to the conditions listed at 1 to 8 above: • Any organisation or person employing or contracting with you to undertake medical work. • Any locum agency or out-of-hours service you are registered with or apply to be registered with (at the time of application). • Any prospective employer (at the time of application). • The PCT on whose Medical Performers List you are included, or seeking inclusion (at the time of application). • Your Director of General Practice Education (or their nominated deputy)."
The appellant was therefore able to practise, but subject to conditions.[7]In November 2007 Wandsworth NHS Teaching Primary Care Trust wrote to the General Medical Council that the appellant had not asked it to undertake any form of management audit of the administrative systems in his practice to ensure that the deficiencies had been addressed. In addition, it also appeared that the appellant had not notified the Trust of the conditions placed on his registration in line with Condition 9. The letter went on to say that the Primary Care Trust was due to undertake an annual contract review visit to the appellant later that month. This was the second time the Trust had attempted to visit in 2007, as the appellant did not appear to have received the original documentation with regard to the first visit. The letter then recorded that when Trust officials spoke to the senior receptionist, who was covering for the practice manager, she had handed over the documentation which had been sent and asked what she had to do with it. The practice manager was the appellant's wife and the computer operator was his daughter. The letter noted that neither had been in the practice for a few months due to maternity leave and hospitalisation. The letter then said:
"There are concerns regarding the administration management within the practice and the PCT consistently have to send reminders in regards to the returning of documentation, eg signed DES specifications and so on. His senior receptionist tries to cover but does not have the relevant skills to cope with the full demands of practice management."
[8]The period of conditional registration was due to expire on 28th January 2008. A Fitness to Practise Panel therefore convened to conduct a review hearing. In preparation for that hearing the appellant prepared a statement dated December 2007. The appellant said in the statement that after his participation in the process leading to the imposition of the conditions, he found it difficult to resume normal practice. However, one step that he did take as a priority was to dismiss his former practice manager. In July 2006 he appointed his wife to the role of practice manager and she had shadowed the former practice manager until he left. She had emphasised to her, in her letter of appointment, the importance of running the surgery smoothly and maintaining the highest standard of accounting methods as required. The appellant's statement went on to say that, as a result of the fresh and enthusiastic approach on the part of his wife, he was able to focus on the clinical care of patients. Induction policies for staff and locum doctors had been established and several protocols established or updated. He had been in touch with a Dr Jeremy Gray, as a mentor, and he had arranged visits to his practice, which were reciprocated. He had visited Dr Gray's practice on at least three occasions after June 2006 and two other surgeries as well. Dr Gray had been accessible by telephone at all times. In addition, he had discussed various issues monthly with a Dr Zaffar. He had also attended postgraduate meetings at which management issues had been presented. The statement went on to say that 2007 had proved to be difficult year. He himself had become ill and, in early December 2007, his wife had suffered a stroke and had been unable to complete her responsibilities as a practice manager. He had appointed one of the receptionists to the role in her absence and she had quickly fulfilled her new responsibilities, having attended several day-release courses. In addition, his daughter had returned to the family home and was able to assist as well. The statement concluded by saying that the appellant was unable to achieve all that he had intended, which he very much regretted, but that he thought that the Trust visits to, and assessments of, his practice might comply with some of the conditions imposed by the Panel in 2007.[9]In addition, there is a statement from Dr Zaffar, in which he pointed out the stressful circumstances under which the appellant had been operating, in particular his own ill health and the ill health of his wife. Dr Zaffar said that nonetheless the appellant had discharged clinical and academic duties with great responsibility and had also tended to administrative duties with the help of the practice manager. Dr Zaffar went on to record that the appellant's wife had employed efficient, qualified, skilled and experienced staff, and changed the face of the practice. She remained fully updated with matters pertaining to the practice accounts and she regularly held staff meetings to discuss deficiencies and in order to improve working skills. Dr Zaffar concluded by saying that the appellant had always shown great enthusiasm to attend clinical meetings at local hospitals and that he was also practising alternative medicine, which was greatly benefiting his patients and much appreciated by them.[10]The Panel met on 3rd January 2008. The appellant was represented by counsel, Mr Edis. The fitness to practise and breach of conditions laid down by the 2006 Panel were first determined. Mr Edis, in his submissions to the Council, said that these two issues were separate, but could be dealt with at the same time. He said:
"There is, I have to concede, a certain elemental force in that submission [ie that there was no evidential basis to say that the appellant's fitness to practise was not impaired], given the totality of the information that you have before you, and it would not be my intention to take up your time wastefully with issues with which you may in fact find little difficulty, so I will say no more about impairment and fitness to practise. It is a matter for your judgement. You have a historical finding... and really there is nothing before you to say that that no longer obtains"
. Mr Edis then went on to reiterate that fitness to practise was a matter for the Panel, and he advanced no case that it was not impaired:
"I recognise the force of the suggestion that it has not been dislodged by an evidential avalanche."
The Panel, in its reasons, addressed the issue of fitness to practise. It set out the contentions of counsel for the GMC, who asked the Panel to accept that the situation, as it existed in June 2006, had not changed significantly, and that there was no evidence which would lead it to make any different finding. The Panel noted that Mr Edis, on behalf of the appellant, had not contended that his fitness to practise was not impaired. The Panel then said this: "In considering whether your fitness to practise is impaired, the Panel had regard to the misconduct which resulted in the hearing in 2006, your written and oral evidence and the fact that you have provided no information to indicate that your fitness to practise is no longer impaired. You have not provided the information requested of you by the previous panel, in particular a personal development plan designed to address the deficiencies in your practice management, reports from the deanery, a report from an approved mentor, evidence of courses undertaken, or a report from the PCT following a management audit of your practice" (page 2 of the main bundle).[11]Having concluded that the appellant's fitness to practise was impaired, the Panel next considered the conditions which had been imposed on his registration by the 2006 Panel. Counsel for the GMC asked the Panel to accept that he had breached many of the conditions, and in particular focused on Conditions 5, 6, 8 and 9. The Panel recorded that Mr Edis, on behalf of the appellant, had asked that any failures to comply with the conditions were considered in the context of the mitigating evidence which had been adduced.[12]In its reasons the Panel found that there were breaches. For example, in relation to Condition 5 it found that there was no evidence that the appellant had worked with the Director of Postgraduate General Practice to formulate a Personal Development Plan designed to address the deficiencies in his practice management identified by the 2006 Panel. It went on to note that Condition 6 had been breached, namely that there was no evidence of the appointment of Dr Gray as the appellant's mentor and of the reciprocal visits being paid to each other's practices. Indeed, there was no evidence, said the Panel, that the Director of Postgraduate General Practice was aware of Dr Gray, or approved of his suitability to act as the appellant's mentor. In relation to Condition 7 the Panel said that the condition had been breached on the basis that no approved mentor had been appointed and there was no evidence that the appellant had observed the practice management arrangements in at least two other practices. The Panel also found that Condition 8 had been breached and that Condition 9 had been breached in part.[13]The Panel then heard submissions on sanctions. On behalf of the appellant, Mr Edis pointed out that the appellant was a sole general practitioner; there were testimonials in his favour; there had been witnesses supporting him at the 2006 Panel Hearing; the appellant was held in esteem, and rightly so; there had been a small number of conditions imposed — there could have been more; and the Panel needed to address the issue of the impact of suspension. Quite apart from the fact that this would be purely punitive and serve no purpose, it would not remedy any management defects in the appellant's practice. In addition, what would happen to the appellant's patients if the appellant were to be suspended? As was inevitable in an inner city general practice, there were many chronically unwell patients and the appellant had developed a relationship with many patients, having been their family doctor for over 30 years. Suspension would be a disproportionate reaction and would not be an appropriate use of sanctions. It would descend too far into the realm of punishment and move away from the primary aim of protecting the public. In Mr Edis' submission, the appellant's wife was doing a fine job and nobody suggested that the lead receptionist, who was filling the breach during her illness, was going to be there long-term. Indeed, there was an advertisement for her successor. To suspend a sole practitioner from his practice during this time would be to cast to the four winds not only the patients, but the employees. Mr Edis also submitted that a proper, proportionate balancing of the factors in play would allow the appellant another chance, and would also take into account his personal circumstances. That all pointed, in his submission, to a reinstatement of the conditions.[14]In its reasons, the Panel noted the mitigation advanced on the appellant's behalf. It noted the ill health of the appellant and his wife. It recorded that the previous practice manager was no longer in place and that the appellant was seeking to appoint a practice manager on a permanent basis. The Panel said, however, that it was aware that the previous Panel's conditions were in place for at least 6 months before the appellant and his wife became ill. During that period there was no evidence that he had made any significant efforts to act in compliance with the conditions, which had been intended to give him an opportunity to address the serious problems which had brought his registration into question. The Panel had heard no evidence or complaint about the appellant's clinical competence. The Panel noted that Mr Edis, on his behalf, had asked it to take into consideration, as well, that the Trust had not sought to suspend or to remove the appellant from its Performers List. They also noted that Mr Edis had submitted that the appellant had undergone an appraisal by his PCT and had been referred to the Trust's annual contract review which took place in November 2007. It noted Mr Edis' submission that, despite recent illnesses, the appellant had made the care of his patients a priority. The Panel said that, on the appellant's own evidence, Dr Gray was his mentor, but it had found no evidence that Dr Gray's appointment was known to, or approved by, the deanery. The Panel noted that the appellant had not provided a report from Dr Gray and had failed to disclose his address to the General Medical Council when he was requested to do so. The Panel said this: "The Panel considered whether it is necessary to take action in relation to your registration. In view of its findings that your fitness to practise is impaired and that you have breached many of the conditions imposed on your registration, the Panel concluded that it would be insufficient to take no further action in your case. The Panel therefore considered whether it would be sufficient to direct a further period of conditional registration. However, any conditions would need to be appropriate, proportionate, workable and measurable. Given your failure to comply with the conditions imposed in 2006, the Panel had no confidence that a further order for conditions would be appropriate. The Panel next considered whether suspending your registration would be sufficient, in light of your breaches of many of the conditions that were imposed on your registration. However, in all the circumstances, bearing in mind the evidence received in mitigation and taking account of the need to act proportionately, the Panel concluded that it would be appropriate and proportionate to suspend your registration for 12 months, which is the maximum period allowed. However, you should know that, in reaching its decision, the Panel considers that, had it not been for the evidence in mitigation, you might have come close to the brink of erasure" (page 8 of the main bundle). The law[15]The general principles applying in relation to an appeal of this nature is that the court can only allow an appeal where it is satisfied that a decision of a Panel is wrong or unjust because of some procedural or other irregularity in the proceedings (CPR Rule 52.11(3)). The Court of Appeal in Meadow v General Medical Council [2006] EWCA Civ 1390, [2007] QB 462 said, in relation to a finding of serious professional misconduct (a ground which existed prior to the amendments of the Medical Act 1983): "... it is plain from the authorities that the court must have in mind and give such weight as is appropriate in the circumstances to the following factors: i) The body from whom the appeal lies is a specialist tribunal whose understanding of what the medical profession expects of its members in matters of medical practice deserve respect; ii) The tribunal had the benefit, which the court normally does not, of hearing and seeing the witnesses on both sides; iii)The questions of primary and secondary fact and the overall value judgement to be made by tribunal, especially the last, are akin to jury questions to which there may reasonably be different answers" (para 197).[16]As far as sanction is concerned, the Court of Appeal has also given guidance. In Fatnani & Raschid v General Medical Council [2007] EWCA Civ 46, [2007] 1 WLR 1460 Laws LJ said that since the principal purpose of a 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 needed to be given to the need to accord special respect to the judgment of a professional decision-maker in the shape of a panel. In paragraph 19 Laws LJ referred to the observations of Lord Millett in Ghosh v General Medical Council [2001] 1 WLR 1915 at page 1923, paragraph 34, where Lord Millett had said that the court must afford an appropriate measure of respect to the judgment of a committee, such as the Panel, as to whether the practitioner's failings amount to serious professional misconduct and on the measures necessary to maintain professional standards. Laws LJ went on to say: "... the High Court will correct material errors of fact and of course of law and it will exercise a judgement, though distinctly and firmly a secondary judgement, as to the application of the principles to the facts of the case" (para 20).[17]In addition to those principles governing an appeal to this court, there are the specific legal principles applicable to a review hearing. Under sections 35D(4)-(12) of the Medical Act 1983 (as amended), that is a hearing where a direction has previously been made by a Fitness to Practise Panel. The scope of a Panel's powers on a review hearing depends on the nature of the previous direction given by a Panel. That may be either a suspension or the imposition of conditions on the doctor. Sections 35D(9)-(12) provide:
"(9) Where - (a) a direction that a person's registration be subject to conditions has been given under - (i) subsection (2), (5) or (8) above (ii) subsection (12) below (iii) rules made by virtue of paragraph 5A(3) of Schedule 4 to this Act, or (iv) section 41A below; and (b) that person is judged by a Fitness to Practise Panel to have failed to comply with any requirement imposed on him as such a condition, subsection (10) below applies. (10)In such a case, the Panel may, if they think fit - (a) except in a health case, direct that the person's name shall be erased from the Register; or (b) direct that the person's registration in the Register shall be suspended during such period not exceeding twelve months as may be specified in the direction. (11)Where a direction that a person's registration be subject to conditions has been given under - (a) subsection (2), (5) or (8) above; or (b) rules made by virtue of paragraph 5A(3) of Schedule 4 to this Act, subsection (12) below applies. (12)In such a case, a Fitness to Practise Panel may, if they think fit - (a) except in a health case, direct that the person's name shall be erased from the Register; (b) direct that the person's registration in the Register shall be suspended during such period not exceeding twelve months as may be specified in the direction; (c) direct that the current period of conditional registration shall be extended for such further period from the time when it would otherwise expire as may be specified in the direction; or (d) revoke the direction, or revoke or vary any of the conditions imposed by the direction, for the remainder of the current period of conditional registration, but the Panel shall not extend any period of conditional registration under this section for more than three years at a time."
It can be seen that both subsection (9)(a) and subsection (11)(a) are satisfied in cases where a person's registration has been made subject to conditions. Subsection (9)(a) will also be satisfied where a direction that a person's registration be subject to conditions has also been given under subsection (12). The key distinction between subsections (9) and (11) is that subsection (9) contains an additional prerequisite, namely that the person is judged by a Panel to have failed to comply with any requirement imposed on him or her as such a condition. Where that is the case, and subsection (9) is satisfied, the Panel may, if they think fit, either direct erasure from the Register, except in a health case, or suspension for no more than 12 months. Those powers, as the statutory language makes clear, are permissive. The powers under subsection (12), which applies where subsection (11) is satisfied, are wider than those under subsection (10). Under subsection (12) a Panel may direct erasure, except in a health case, or suspension, but it may also extend the period of conditional registration, or revoke the direction, or vary any of the conditions imposed by the direction for the remainder of the current period of conditional registration. The legislative design — the dual approach under subsections (9) and (10), on the one hand, and subsections (11) and (12), on the other hand — is designed to enable a Panel, where it is satisfied that there has been a breach of conditions, to choose to direct suspension or erasure without the need to consider a lesser sanction of extending the period of conditional registration. On the other hand, where it is not satisfied on these lines, or even if it is satisfied but does not consider it appropriate to proceed under subsection (10), it may decide instead to proceed under subsection (12). The only exception is that where a Panel has, on a review hearing, directed a further period of conditional registration under subsection (12). In those circumstances a Panel cannot proceed for a second time under subsection (12) but must proceed under subsection (10). Fitness to practise and a Review Panel[18]On behalf of the appellant Mr Wynne Jones contended that the Panel in the appellant's case misunderstood its functions. He submitted that in a case of review, following the imposition of conditions on a doctor's registration, the function of a Panel is to determine whether the appellant has failed to comply with the conditions. In his submission, there was nothing in section 35D which expressly conferred on a Review Panel a discretion to determine fitness to practise. That was underlined, in his submission, by Rule 22(f) of the General Medical Council (Fitness to Practise) Rules Order of Council 2004, SI 2004/2608, which provides:
"The FTP Panel shall consider and announce its finding on the question of whether the fitness to practise of the practitioner is impaired or whether the practitioner has failed to comply with any requirement imposed upon him as a condition of registration, and shall give its reasons for that decision"
. Because the rule expresses fitness to practise and breach of conditions in the alternative, Mr Wynne Jones submitted that in cases of conditional registration, the function of the Fitness to Practise Panel, under Rule 22, was limited to the issue as to whether there was a failure to comply with the conditions. One exception, he conceded, was that the issue of fitness to practise had to be addressed where, for instance, a doctor had been suspended from the Register, and there was a review of that suspension. Otherwise, however, in Mr Wynne Jones' submission, it was inappropriate for a Review Panel to consider fitness to practise. In this case it had done so. Therefore, the Panel's decision of January 2008 was wrong.[19]In my view, Mr Wynne Jones' submission is incorrect. Were his submissions to be accepted, subsections (11) and (12) would be redundant. I t will be recalled that they provide for a review by a Panel in circumstances where it has not found any failure to comply with any requirement imposed on him as a condition. Mr Wynne Jones accepts that under subsection (12) the issue of fitness to practise is relevant where, for instance, a doctor has been suspended and there is a review of that suspension. The powers on a review following a direction of suspension are established at section 35D(4)-(8). Section 35(11) is simply the equivalent provision to section 35(5). Whilst neither subsection refers expressly to a Panel being required to consider fitness to practise, that that is the issue for consideration is evident from the very structure and purpose of section 35D. That is supported by Rule 22, which expressly provides for the calling of evidence on that issue and the making of a reasoned finding on it. So where subsection (11) is satisfied, the issue for a Panel, under subsection (12), is whether or not the practitioner's fitness to practise is impaired. If Mr Wynne Jones were correct, it would mean that where a practitioner has breached the conditions initially imposed on his registration only in a technical fashion, without any culpability, he would have to be dealt with under section 35D(10). The sanction of a further period of conditional registration would not be open to the Panel and it could only impose a direction of suspension or erasure, or no sanction at all. That Rule 22 is expressed in the alternative does not assist Mr Wynne Jones' submission. Part V of the Rules makes provisions for review hearings in a wide range of situations, under sections 35(5)-(6), (8), (10) or (12). There is nothing in the Rules to suggest that a Panel is only concerned with a practitioner's fitness to practise in cases other than those where there has been an imposition of conditions. In my view, therefore, as a matter of statutory interpretation a Panel on a review hearing can consider not only whether or not conditions previously imposed have been breached, but also a doctor's fitness to practise. The upshot is that in this case the Panel was fully entitled to consider whether the appellant had breached his conditions, along with whether or not his fitness to practise was still impaired.[20]Let me now turn to the Panel's findings in relation to impairment of fitness to practise. On behalf of the appellant, Mr Wynne Jones submitted that the Panel relied essentially on the fact that the Panel in 2006 had found that his fitness to practise had been impaired. That was an improper approach. In Mr Wynne Jones' submission, a finding that the appellant's fitness to practise was impaired in 2006 could not predetermine whether his fitness to practise was impaired in 2008. There had to be positive evidence to establish that determination. There was no positive evidence in this case. To the contrary, there was clear evidence that the appellant had taken steps, such as the dismissal of his previous practice manager in August 2006. Furthermore, in Mr Wynne Jones' submission, reliance on breach of conditions did not, of itself, demonstrate impairment of fitness to practise. Instead, it showed a failure to comply with conditions, which may or may not be relevant to impairment of fitness to practise. In Mr Wynne Jones' submissions, the appellant admitted that he had failed to comply with the conditions imposed, but he had dismissed the practice manager and there was further mitigating evidence, including the appraisals from patients and fellow medical practitioners. In particular, there was the statement from Dr Zaffar, to which I have referred. In Mr Wynne Jones' submission, the appellant relied upon there being no allegation of poor practice management, no allegation of poor clinical practice, as well as the appraisals from the Primary Care Trust in 2005-2006 and 2006-2007, showing improved quality of achievement. None of those matters had been taken into account by the Panel when determining the issue of fitness to practise.[21]As far as the Panel's finding of impairment of fitness to practise is concerned, my starting point must be that the issue is a matter for the professional judgement of the Panel. Moreover, as I indicated earlier, the appellant's counsel before the Panel, Mr Edis, conceded the "elemental force" of the General Medical Council's submission that there was no proper evidential basis to say that the appellant's fitness to practise was no longer impaired. Mr Edis had expressly disavowed, in the passages to which I referred earlier, any positive case that the appellant's fitness to practise was not impaired. In my view, it is too late for Mr Wynne Jones, in this appeal, to contend that that concession should never have been made. Overall, I see no flaw in the reasons of the Panel. The Panel properly took into account the relevant evidence, including the original misconduct, and the absence of information subsequently, from the appellant, to indicate that his fitness to practise was no longer impaired. It noted, in particular, his failure to provide the information requested of him by previous panels.[22]Reading the Panel's reasons leads me to reject a further submission by Mr Wynne Jones, that somehow the finding of impairment by the previous Panel predetermined the current finding that the appellant's fitness to practise was impaired. On my reading, the Panel was simply using that as a starting point for its analysis. In the absence of any evidence to displace the continued applicability of that finding, the Panel was plainly able to conclude that the appellant's fitness to practise was impaired. In particular, the Panel was entitled to proceed on the basis that the appellant did not seek to argue that his fitness to practise was not impaired.[23]As to the basis of the Panel's finding, Mr Wynne Jones submitted that there was an absence of evidence of poor practice management. The appellant had dismissed his practice manager and had appointed his wife and, in the absence of his wife, a receptionist had performed the functions adequately. In my view, however, the appellant had in large part failed to comply with the conditions designed to address poor practice management. Therefore, it cannot be said that there was no evidence of poor practice management. In particular, I quoted the letter from the Trust, which expressly identified ongoing concerns regarding the administration management within the practice. The Panel was entitled to find that there was no evidence of a substantive change in the appellant's practice arrangements as a result of the conditions imposed on his registration.[24]Mr Wynne Jones rightly highlighted the absence of poor clinical practice. There never had been any question of the appellant's clinical practice being in any way in question. Precisely because that issue had no bearing one way or the other on the practice management, the Panel was entitled to disregard it. As far as the breach of conditions is concerned, it was only after concluding that the appellant's fitness to practise was impaired that the Panel proceeded to consider that issue. In any event, it seems to me that the Panel would have been entitled to take those breaches into account in making its overall assessment of the appellant's fitness to practise. Sanction[25]In suspending the appellant for the maximum period, the Panel, in Mr Wynne Jones' submission, failed to have sufficient regard to the fact that the appellant had admitted the breach of conditions. It did not properly take into account that as a sole practitioner the appellant would suffer a dramatically disproportionate penalty as a result of suspension, for inevitably his patient base would be eroded — indeed, would probably dissipate entirely — during the period of suspension. Since the appellant was now 67 years old, he would therefore have little chance of further employment in his chosen profession. That, in Mr Wynne Jones' submission, would be most unfortunate, because there was no suggestion that this appellant's clinical ability was less than excellent. Mr Wynne Jones also reiterated the changes which had been made to the appellant's practice consequent on the dismissal of the practice manager. In his written submissions, he also pointed out that the moneys in issue had been repaid by the appellant prior to the Fitness to Practise Panel hearing in 2006.[26]In approaching the matter of sanction, I must accord the appropriate degree of respect to the Panel's determination in accordance with the Court of Appeal decision in Raschid. As Laws LJ underlined in that case, my judgment is distinctly and firmly a secondary judgment. I must be satisfied that the Panel's decision was wrong, rather than seeking to stand in the shoes of the Panel. In my judgement, there is no justification for me to interfere with the Panel's decision as regards sanction. The Panel expressly took into account the appellant's evidence advanced by Mr Edis at the hearing, and I conclude that its determination cannot be impugned.[27]I dismiss the appeal. Thank you.[28]MISS GALLAFENT: My Lord, may I respectfully suggest two corrections of factual matters to the judgment.

MR JUSTICE CRANSTON: Yes.

[30]MISS GALLAFENT: My Lord, you referred to the letter from the Primary Care Trust. Your Lordship referred to the record that the papers had been handed over by the senior receptionist, and then, it may be my mishearing, but I understood your Lordship to elide the senior receptionist, suggesting that that was the appellant's wife. The appellant's wife was, of course, the practice manager at that point, but had not been in the practice. If perhaps that could be made clear at that point, in fairness.[31]The second proposed correction, my Lord: in dealing with my learned friend's submissions in relation to whether or not the relevant test under subsection (12) is fitness to practise, my Lord pointed out that my learned friend had of course accepted that the issue of fitness to practise was relevant in the context of suspension. You referred there, though, to him accepting that under subsection (12). Of course, he accepts that under subsection (5), in relation to suspension, which has the effect, as your Lordship then indicated, that that is the same as under subsection (12). If I can perhaps make those two points.

MR JUSTICE CRANSTON: Yes, good.

[33]MISS GALLAFENT: My Lord, can I also make an application for the General Medical Council's costs in relation to this matter? We had an updated summary assessment, but the schedule was served in accordance with thepractice direction previously. It is updated with a small amount of moneys in relation to this morning's attendance. If your Lordship has the updated schedule, you will see that the subtotal at the bottom of the first page relates to my instructing solicitor's costs — do you have that my Lord — £3,380.50?

MR JUSTICE CRANSTON: Yes, I have that.

[35]MISS GALLAFENT: Then my own costs, which includes both yesterday's hearing and preparation of the skeleton argument, coming to a total of £7,881.25.

MR JUSTICE CRANSTON: Mr Wynne Jones?

[37]MR WYNNE JONES: My Lord, the only matter I would raise is this, you see Mr Truby's hourly rate of £246. I would understand that Mr Truby is an in-house solicitor, although I am liable to be corrected immediately. If he is an in-house solicitor, I do question how he can, on behalf of the General Medical Council, therefore claim an hourly rate if he be a salaried employee, but that is a matter upon which I daresay my learned friend can take instructions very quickly and deal with it.[38]MISS GALLAFENT: My Lord, it is my understanding that the General Medical Council always claims its costs in relation to an hourly rate, and the hourly rate is based on the cost to the General Medical Council, not what salary Mr Truby may be lucky enough to earn. It is the cost to the Council, not Mr Truby's income, that is relevant here. The hourly rate, therefore, is the relevant rate of £246.[39]MR JUSTICE CRANSTON: I do not have immediately in front of me the scale rates, but how does that accord?[40]MISS GALLAFENT: My Lord, I also do not have the scales. It is the 8 years-plus figure for Grade A, but I do not understand it to be particularly out of kilter with the ordinary scale.[41]MR WYNNE JONES: My Lord, I do not question the hourly rate of £246 being out of kilter. The only thing I do question is this: we are obliged to pay, and I concede it straightaway, costs which are reasonably incurred. If this hourly rate does not reflect the amount the GMC must pay their in-house solicitor, that does not reflect the amount that is incurred in costs by the GMC. I simply seek some understanding that there seems to be some contractual arrangement between the GMC itself and the GMC's own solicitor, which frankly baffles me.

MR JUSTICE CRANSTON: That would sometimes be the case in a law firm, would it not?

[43]MR WYNNE JONES: Certainly if the GMC went to an external solicitor, then this would be an appropriate hourly rate for the central fund. I do not gainsay that.[44]MISS GALLAFENT: My Lord, I am instructed that this is the Outer London rate, not the Central London rate, so in fact it is cheaper than it would be if it was the Inner London rate. But the point is a simple one: the relationship between my individual instructing solicitor and the General Medical Council is irrelevant here. How much he happens to earn is not the question. The question is how much it costs the General Medical Council per hour. That would be the same with any firm of solicitors.

MR JUSTICE CRANSTON: Mr Wynne Jones, what about the details?

[46]MR WYNNE JONES: The details I do not question.[47]MR JUSTICE CRANSTON: I am going to award costs in the sum of £7,881.25. Thanks very much, the two of you.