Saverymuttu v The General Medical Council [2011] EWHC 1139 (Admin)

[2011] EWHC 1139 (Admin)Case No CO/4329/2010
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 06/05/2011
Before
THE HON. MR JUSTICE NICOL
Between
Dr. Sethna SaverymuttuAppellantThe General Medical CouncilRespondent
Angus Moon QC (instructed by Nabarro, solicitors) for AppellantCatherine Callaghan (instructed by GMC Legal) for RespondentHearing Hearing dates: 4 th& 5 th April 2011
Judgment
[1]Dr Saverymuttu, the Appellant, is a consultant physician with an interest in gastroenterology. He holds an NHS post at the Broomfield Hospital and also undertakes private work at the Springfield Hospital. As part of his practice he performed oesophago gastro-duodenoscopies (OGDs). In the majority of cases these are diagnostic procedures, but sometimes they involve a therapeutic intervention such as the removal of a polyp. When the Appellant carried out these procedures on private patients, he would very commonly seek payment from the patient’s private health insurer. The insurers ask doctors who are seeking such payments to identify the procedure which they have carried out by reference to a code and sometimes by describing in narrative terms what they have done. In this case it was alleged that the Appellant had used an inappropriate code. He had used the code which the insurers used to identify a therapeutic OGD (G4500), when what he had in fact done was a diagnostic OGD. According to the insurers, a diagnostic OGD should have been identified under a different code (G6500). Since insurers would pay more for a therapeutic OGD, the code used by the Appellant led him to being paid more than if he had used code G6500. Before the Fitness to Practise Panel (“the FPP”) the GMC said that the Appellant had misled the insurers and had acted dishonestly in so doing and for this reason he was unfit to practise.[2]In its decision of 15th March 2010 the FPP found that the Appellant should have been aware that he was misleading insurers as a result of schedules setting out the codes which were sent to him by BUPA (one of the insurers) in 1997 and by AXA PPP (another of the insurers) in 1998 and as a result of letters from AXA PPP in 2004. Importantly, the FPP found that the Appellant did know that he was misleading the insurers after he received a further letter from AXA PPP dated 17th March 2005. From the later date until the system changed at the beginning of 2006 the FPP found that the Appellant had behaved dishonestly. The Panel then held that his misleading actions from 2004 and subsequent dishonesty were individually and collectively of such a nature that his fitness to practise was impaired by reason of his misconduct. It imposed a sanction of 12 months suspension.[3]Dr Saverymuttu has appealed to this Court under s.40 of the Medical Act 1983. The sanction does not take effect pending determination of the appeal.[4]The codes used by insurers are based on a classification system adopted by the Office for Population, Censuses and Surveys (OPCS). This system is anatomically based and is used primarily to record clinical activities in the NHS. In the OPCS classification (4th Revision), the code G45 is used to refer to diagnostic fibreoptic endoscopic examination of the upper gastrointestinal tract. Code 45.1 is used for that procedure and biopsy of lesion of upper gastrointestinal tract. Code G65 is used for diagnostic endoscopic examination of jejunum (which is a different part of the alimentary system). In 1992 the British Medical Association published guidelines as to appropriate fees for particular procedures. The Appellant referred to these for two purposes. First to show that the BMA also made use of the OPCS codes. Here it referred to G4510 as the code for oesophago-gastro-duodenoscopy. Although this did not distinguish therapeutic from diagnostic OGD, the Appellant’s case was that this category was highlighted by being printed in bold. That signified a common procedure. Very commonly OGDs would be diagnostic and only rarely would they be therapeutic. The equivalent OPCS code was also for a diagnostic procedure. This underscored the Appellant’s belief that this was the correct code to use for a diagnostic OGD. The second purpose for referring to the BMA publication was that the amount suggested by the BMA in 1992 for an OGD was £200. Making allowance for inflation, this was in line with the £300 which the Appellant was charging for a diagnostic OGD in 2004.[5]The case presented against the Appellant by the GMC was that, while insurers had taken the OPCS classification as their starting point, they had adapted it. In 1993 BUPA, the market leader, produced a schedule of procedures with the relevant codes. On this schedule G6500 was the code for diagnostic OGD “+/- biopsy”. Code G4500 was to be used for OGD “+/- removal/laser or diathermy destruction of lesions”. G6500 was classified as a minor procedure. G4500 as an intermediate procedure. PPP followed suit in the same year.[6]The evidence was that the symbol “+/- ” was confusing. BUPA produced a revised schedule in 1997. The Essential Notes to the Schedule said, “About the Schedule of Procedures The prime purpose of the schedule of procedures is to set out codes, narratives and classifications for those procedures that are commonly performed on BUPA members. The Schedule is also used for ease of administration of claims and as a means of data collection. …. Coding and Benefit Structure The schedule of procedures is based on the OPCS coding system but has been adapted for use by BUPA. Other insurers have adopted these codes and narratives in their own versions of their schedules. … Each procedure is given a code number. When completing a claim form or an account for a BUPA patient, please include the code number as well as the description of the treatment. This will avoid any ambiguity as to which procedures were performed and support accurate and prompt payment of the account.”

Coding and Benefit Structure

[7]The different procedures were then identified as fitting into one of 25 categories. G6500 was given the narrative “Diagnostic OGD including biopsy”. The surgeon’s category was “minor 3”. Code G4500 was for “Therapeutic OGD including removal of foreign body/polypectomy” and was categorised as “minor 5”. The maximum reimbursement for a Minor 3 procedure was £117, for a minor 5 procedure it was £167. Thus BUPA would pay up to £50 more for a therapeutic OGD than it would for a diagnostic OGD.[8]PPP made similar changes in 1998. The introduction to its Schedule of that year said, “All procedures have been given a complexity grading (minor, intermediate…) and a code based on OPCS coding…The OPCS code should be included on any claim form or account. Reference to these codes on your invoices will help our personal advisers identify the procedure, and will help avoid unnecessary confusion, which may delay the payment of fees.”[9]Exactly mirroring BUPA, PPP’s schedule then said that Code G6500 was for diagnostic OGD including biopsy and G4500 was for therapeutic OGD including removal of foreign body/polypectomy. G6500 was classified as “minor” while G4500 was classified as “intermediate”. PPP did not set a maximum which it would pay but said that it would expect the fees to be usual and customary based on fees charged by the majority of specialists. It had internal benchmarks as to what would be appropriate for the identified procedure.[10]The Appellant agreed that he had received BUPA’s 1997 schedule and PPP’s 1998 schedule. The FPP’s view was that these schedules were clear and unambiguous in requiring the Appellant to use code G6500 for a diagnostic OGD. It was his responsibility to read and act on the contents of them. However, it accepted his evidence that he did not in fact study the detail of the codes and narratives in those two documents. He was not, therefore, actually aware that he was using the incorrect coding.[11]In October 2002 BUPA wrote to the Appellant about the coding in his claims, but the Panel found that he had not received that letter. AXA PPP wrote to the Appellant as well on 24th February 2004 and 7th April 2004. The Appellant admitted that he had read these letters. The letters were in almost identical terms. They said to the Appellant that G6500 was the correct code for a diagnostic OGD, including biopsy and that G4500 was the correct code for an OGD including a therapeutic procedure. The Panel found that from the time of receipt of the Schedules and these letters the Appellant should have been in no doubt about the appropriate coding. Since the Appellant throughout was continuing to use the code G4500, he should have been aware that he was incorrectly claiming for a therapeutic OGD when he had only carried out a diagnostic procedure.[12]On 17th March 2005 AXA PPP wrote again to the Appellant. It said, “As you may be aware, we are now using computerised data analysis techniques to identify billing which is out of line with what is expected. Our system has highlighted your billing as being out of line with what is usual and, specifically, the fact that you have invoiced nearly 100% of gastroscopies to us using OPCS Code G4500, which is the code for a gastroscopy and therapeutic procedure. This is an unusual billing pattern, the correct code for a gastroscopy is G6500 which is a minor procedure carrying a lesser benefit and it would be highly unusual clinical practice where all procedures performed were therapeutic in nature. I attach as an appendix to this letter a list of patients for whom you have invoiced for G4500 and the relevant claims are highlighted in red. We would ask that you review the list and advise us which if any of the procedures were in fact therapeutic in nature. If we are not satisfied within 30 days that these claims have been correctly billed, it is our intention to reassess these bills as G6500 and adjust the benefit paid accordingly.”[13]Dr Saverymuttu replied on 20th April 2005. He said, “Thank you for your letter of 17th March. I pointed out to PPP over ten years ago that your coding for endoscopic gastroenterological procedures was incorrect and fails to conform with the last BMA Guidelines. It is particularly disappointing that the 2000 Edition of Schedule of Procedures quotes the BMA Guidelines yet fails to correct the coding. The last BMA Guidelines (1992) p.20 does not recognise the code G6500. All non-therapeutic Oesophago-gastro-duodenoscopy are classified as G4510 (G4500) hence the classification used in my billing. In fact the code is immaterial to the billing since PPP recommends individual consultants decide appropriate fees for their services. For non-therapeutic Oesophago-gastro-duodenoscopy I base my billing on the fee structure recommended by the last BMA guidelines (1992) p.30.”[14]As can be seen, the Appellant there referred to the 2000 AXA PPP Schedule. It is correct that this quoted from the BMA Guidelines, although this was in connection with a matter that did not arise in the dispute between the Appellant and the insurer. The 2000 Schedule did say that specialists should individually decide appropriate fees but added “We cannot however, agree to reimburse our Policyholders for all their charges without limit.” It repeated that AXA PPP did not publish a schedule of maximum fees but used internal benchmarks for what fees were fair and reasonable. Fees in excess of what was customarily charged would not be routinely reimbursed. As in the 1998 PPP Schedule, the codes distinguished between a diagnostic OGD (Code G6500) and a therapeutic OGD (Code G4500). The distinction between the two was underlined by the opening words of this section of the schedule which said, “The benefit for endoscopic therapeutic procedures includes an amount for diagnostic endoscopy. This should not be charged for separately.”[15]It was the Appellant’s case that, although he had referred to the 2000 PPP Schedule when composing his letter of 20th April, he had not read the schedules and had not noticed the limitation of G4500 code to therapeutic OGDs. Mr Moon QC on his behalf submitted that the Panel was inconsistent in its decision as to whether it accepted or rejected this evidence. I will return to this matter in due course.[16]On 28th July 2005 AXA PPP wrote again to the Appellant. It recalled its earlier letter (clearly a reference to the one of 17th March 2005) and said “The issue was that diagnostic gastroscopy G6500 was being charged as if it were therapeutic G4500, resulting in an overpayment of benefit.” It reassessed invoices submitted by the Appellant in 2004 and identified over £13,000 as having been overpaid. It deducted this amount from subsequent claims rendered by the Appellant.[17]The Panel explained why it considered that the Appellant had acted dishonestly after 17th March 2005 as follows:
“On 17 March 2005, AXA PPP sent you a letter which made absolutely clear its position on the correct code to use. On receiving this letter you checked the AXA PPP Schedule which also clearly indicated to you the correct codes. Although you challenged the basis of AXA PPP coding in your letter of 20 April 2005, the Panel found that from this time onwards you must have been aware of how AXA PPP expected you to submit your claims. Furthermore AXA PPP was suggesting to you that it intended to reassess the validity of your previous claims and to recoup some of your overpayments from you. This should have left you in no doubt as to what was required of you. Additionally, AXA PPP’s letter of 28 July 2005 is further confirmation of the appropriate course of action to be taken by you in claiming. Therefore, the Panel found that, from about 17 March onwards, you were aware that you were incorrectly claiming for a therapeutic rather than diagnostic OGD.”
[18]The Panel went on to find that the insurers were indeed misled.

Did the Panel act unfairly by relying on the letter of 17th March 2005?

[19]The General Medical Council (Fitness to Practise) Rules Order in Council 2004 r.15(2)(a) provides that a notice of hearing must “particularise the allegation against the practitioner and the facts upon which it is based.”[20]The relevant part of the allegation against the Appellant said that he “continued to use G4500 when claiming for a diagnostic gastroscopy after: a) BUPA inserted the word ‘therapeutic’ in its narrative for code G4500 within its 1997 Schedule of Procedures; b) AXA PPP inserted the word ‘therapeutic’ in its narrative for code G4500 in its 1998 Schedule of Procedures c) BUPA wrote to you on 24th October 2002 to remind you of the two codes and their clinical narratives; and request that you ensure that each procedure was coded as performed. d) AXA PPP wrote to you on 24 February and 7 April 2004 to inform you of the correct codes to be used for diagnostic and therapeutic gastroscopies respectively; that a therapeutic procedure would only be expected to be performed in a minority of cases; and that the ratio of these procedures invoiced by you was higher than would be expected.”[21]On 1st June 2009, which was day 19 of the hearing before the FPP, and in the course of closing submissions, an issue arose as to whether the ambit of the allegations against the doctor was wide enough for the Panel to take account of the letter from AXA PPP of 17th March 2005. The Panel concluded that it was, but, to allay any concern as to the fairness of the procedure, it would allow the Appellant to recall any witnesses that he wished. Mr Moon, who then also represented the Appellant, suggested that a further two weeks of hearing should be allowed. As a result the Panel adjourned and resumed the hearing on 8th March 2010. In the event, Mr Moon recalled only one witness (the Appellant’s expert witness). The Panel expressly invited Mr Moon to recall the Appellant himself, but Mr Moon chose not to do so. The further evidence took just ½ a day. Counsel for the Appellant and the GMC then made further submissions.[22]Mr Moon submits that the Panel was wrong to conclude that the existing allegation was wide enough to embrace dishonesty following the letter of 17th March 2005. Unfairness to the Appellant could not be overcome by the adjournment and the opportunity to recall witnesses.[23]Mr Moon emphasises the fundamental principle that a charge of dishonesty should be unambiguously formulated and adequately particularised – see Salha v GMC [2003] UKPC 80 at [14]. This is an obligation founded in common law and now buttressed by Article 6 of the ECHR – see Singleton v The Law Society [2005] EWHC 2915 (Admin) at [12]. In this case, Mr Moon argues the paragraph of the allegation which I have quoted above identified the four stages at which it was said the Appellant had been given information and as a result of which his subsequent behaviour was dishonest. They did not include the letter of 17th March 2005. On 5th May 2009 counsel for the GMC had provided particulars which again relied exclusively on the four stages, or watersheds, as were mentioned in the charge. In his opening of the case, counsel for the GMC had gone through these same four stages. He had described the last of them, the two letters from AXA PPP in 2004 as “the last chance saloon for possible lack of certainty.” Again there was no reliance on the letter of 17th March 2005 as providing a possible fifth watershed.[24]Mr Moon said that, if he had appreciated that the letter of 17th March 2005 was to be relied upon as a further watershed or critical source of information for Dr Saverymuttu, there were additional questions that he would have asked. The opportunity to have witnesses recalled would not have been an adequate substitute. The element of surprise would have been lost, there were some questions he might have chosen not to ask and the structure of his cross examinations might have been different.[25]Ms Callaghan on behalf of the GMC argued that the charge was wide enough for the Panel to be able to rely on 17th March 2005 letter. The GMC had made clear that it was alleging a continuing pattern of dishonesty by the Appellant up until a new system had been introduced in the beginning of 2006. That meant it did have to engage with the Appellant’s state of mind during the period (amongst others) of April 2004 - end of 2005. The March 2005 letter was admissible and relevant and relied on by both parties during the first 19 days of the Panel’s hearing. In any case, the adjournment and the opportunity to recall witnesses and to make further closing submissions meant that the Appellant had suffered no prejudice.[26]In my view there is some force in Mr Moon’s submission that reliance on the 17th March 2005 letter was a new variant of the case of dishonesty against the Appellant. It was a further way in which it could be said that the Appellant had knowledge of how his use of the code G4500 would be understood by the insurers and from which it could be inferred that he intended his use of the code to be understood in that way. It was, in the language that was adopted at the hearing, a fifth watershed. Rule 15(2)(a) requires the GMC to give the doctor, notice not only of the allegation that he has to meet, but also the facts on which the allegation is based. In my view, it could properly be said that the letter of 17th March 2005 became a further fact on which the GMC relied.[27]However, r.17(3) makes it clear that the particulars of an allegation or the facts upon which it is based can be amended. Mr Moon argues that no application to amend was made. That is true, but it is a formalistic response. The Appellant was in no doubt as to what was proposed. Whether the proposal was put as an amendment or dealt with in the way that it was, the issue was the same: namely could this be done consistently with the Panel’s obligation to act fairly?[28]The Panel’s view was that any potential unfairness to the Appellant could be dealt with by an adjournment with the doctor having the opportunity to recall witnesses and make further submissions. In my view the Panel was not only entitled to take that decision, but they were right that these measures were sufficient to cure any potential unfairness to the Appellant. That allowed Mr Moon to recall any witnesses and to ask the further questions which he considered relevant in view of the reliance being placed on the letter of 17th March 2005. As it happened, the examples which Mr Moon gave me of questions which he would have wished to ask if he had known from the outset that the 17th March 2005 letter was to be relied upon were all questions which he would have put to Dr Peck, the representative of AXA PPP. However, at the adjourned hearing, Mr Moon did not ask for Dr Peck to be recalled. Mr Moon said that he did not do so because Dr Peck would have been on notice as to why he was being recalled. I am unimpressed by this argument based on the loss of surprise. If Mr Moon had thought that Dr Peck, or any other witness, was tailoring his or her evidence that could have been explored in cross examination and been the subject of submissions. The fine tuning of Mr Moon’s original cross examination may have been somewhat different, although I am doubtful as to the significance of this. But, in any case, the duty to act fairly can be discharged even if the Appellant and his representative have to deal with matters in a slightly different order than would have been their ideal. While, of course the Panel had to treat Dr Saverymuttu fairly, it had also to be conscious that it had a public duty to perform in relation to its investigation of the allegation of serious misconduct by a senior doctor.[29]Mr Moon argues that the finding of dishonesty reflected internal inconsistency in the Panel’s decision, was not justified by the evidence and failed to take account of submissions which he had made on Dr Saverymuttu’s behalf.[30]The allegation of inconsistency concerns the Panel’s comments on whether or not Dr Saverymuttu had read the schedules of BUPA from 1997 and/or AXA PPP from 1998 (or 2000). Mr Moon said that the Panel appeared to find in Dr Saverymuttu’s favour at two places in its decision. Thus at page 5 of the decision it said this, “In considering the allegation of dishonesty, the Panel has taken account of the character evidence adduced on your behalf. This is relevant to your credibility and also to your honesty. In many respects, the Panel found you to be a credible witness. It accepted your evidence that you did not study the detail of the insurance companies’ schedules and that you have always been certain that the way that you code is correct and the coding used by the companies is not.” A little later in its decision the Panel was explaining its finding that the doctor should have been aware that he was incorrectly claiming (from 1997) and that from receipt of the 17th March 2005 letter he was aware that he was incorrectly claiming. It recorded his admission that he had received BUPA’s 1997 Schedule, AXA PPP’s 1998 Schedule and the letters from AXA PPP of 24th February and 7th April 2004. It then said, “The Panel accepted your evidence that you did not study the detail of the codes and narratives in the AXA PPP and BUPA Schedules. It therefore does not find that you were aware that you were using incorrect coding. Indeed, in 2004, you remained certain that you were using the correct coding. Moreover, you were also awaiting the outcome of an audit by AXA PPP which you believed would vindicate your position. Accordingly, the Panel does not find that in 2004 you were aware that you were using incorrect coding. ”[31]Mr Moon says that there is a conflict between these findings favourable to the Appellant and the passage which I have quoted in paragraph 17 above.[32]But in my judgment, there is no inconsistency. The Panel did find that Dr Saverymuttu did not read the Schedules when they were sent to him and found that, even in 2004, he did not appreciate he was using the correct coding. However, the position changed on his receipt of AXA PPP’s letter of 17th March 2005. As the Panel said, the doctor had then checked the AXA PPP Schedule. It is true that in his evidence he said that he did not, even then, notice that the code G4500 was qualified by the word “therapeutic”, but the Panel plainly did not believe him at that point. As it said, “On receiving this letter you checked the AXA PPP Schedule which also clearly indicated to you the correct code.” The Panel was not saying that the Schedule would, if he had noticed, indicate to him the correct code, but that it did indicate to him what was the correct code. In the context of the decision as a whole, the earlier two passages on which Mr Moon relied, were clearly meant to be time limited. They reflected his state of mind, but only up to the point where he “checked the AXA PPP Schedule”. After that the position was different.[33]In his skeleton argument, Mr Moon argued that the best evidence of Dr Saverymuttu’s state of mind was his letter of 20th April 2005. This showed him repeating (and being open about) his view that G4500 was the correct code. As Mr Moon put it in his oral submissions, Dr Saverymuttu may have been bloody-minded but he was not dishonest. Besides, there was evidence that his view that this was the correct code was shared by a reasonable minority of clinicians and that supported his case that these views were genuinely held by him. The panel did not deal with this point. If these views were genuinely held, his persistence in the use of that code could not be dishonest. It was implicit in Dr Saverymuttu’s letter that he was going to continue to use code G4500 for a diagnostic OGD. In any case, it should have been apparent to the insurers that this was his practice, precisely because it was so common for an OGD to be for diagnostic rather than therapeutic purposes. Furthermore, the fee which Dr Peck, on behalf of AXA PPP thought appropriate in his letter of 28th July 2005 (£170) was at odds with the fee which the same Dr Peck had agreed with Dr Saverymuttu for a G4500 in 1998 (£220). In 1994 an audit by PPP of the Appellant’s fees had also approved £200 as a fair and reasonable fee for a G4500 procedure. In addition, the fee which Dr Saverymuttu charged in 2004 for a diagnostic OGD was £300 which (after making allowances for inflation) was well within the price of £200 which had been recommended by the BMA in 1992. AXA PPP had always said that it was a matter for the doctors what fee they charged for their services. It was, of course, up to the insurers whether or not they paid that fee.[34]Ms Callaghan submitted that there was a critical difference between “correct” coding within the OPCS scheme and the coding practices adopted by the insurers. It was the latter which was important in the context of a claim made by a doctor to an insurer for payment of his fees. The insurers could use whatever codes they wished. They could modify and adapt the OPCS codes. As long as they made clear to doctors what their codes were, they could expect doctors to use those codes when making claims to them. In this case, the Panel found (and indeed Dr Saverymuttu accepted) that the insurers’ codes were clear (at least after the schedules were revised in 1997/8): they did use G6500 for a diagnostic OGD. It made no sense, therefore, for Dr Saverymuttu to say that the insurers codes were “incorrect”. They may not have conformed to the previous OPCS classification or the scheme adopted by the BMA in 1992, but that was beside the point. From March 2005, Dr Saverymuttu knew how that the insurers would understand a bill from him saying that he had carried out a “G4500” as meaning that he had carried out a therapeutic OGD. He knew as well that that was not the case. His claim was therefore dishonest. The views of other doctors as to the use of Code G4500 was nothing to the point. What mattered was his state of mind. The approval of the Appellant’s fees in 1994 and 1998 had not focussed on his particular use of the code G4500.[35]Furthermore, it was notable that in his invoicing after receipt of the letter of 17th March 2005, he did not include any narrative explaining that he used G4500 to refer to diagnostic OGD. These claims for payments would be handled by staff who were not themselves clinically trained. They relied on what doctors told them. If a doctor said he had carried out a “G4500”, they would take that to be a therapeutic OGD. The difference in how this code was treated was not just an academic issue. By using the G4500 rather than G6500, Dr Saverymuttu benefited financially. He received a larger fee in consequence. When in July 2005 AXA PPP said that they would recoup some £13,000 he took no action. He said that he did not wish to prejudice his ongoing relationship with the insurer by instituting civil proceedings. However, he took no lesser step either, such as writing a letter of protest at the recoupment of what was a significant sum of money.[36]In considering the meaning of ‘dishonesty’, the panel correctly directed itself in accordance with R v Ghosh [1982] QB 1053. As it said, it “first considered whether, according to the ordinary standards of reasonable and honest people, what was done was dishonest. If it found that the first stage of the test was satisfied, the Panel then went on to consider whether you [i.e. the Appellant] yourself must have realised that what you were doing was, by those standards, dishonest.”[37]In conducting this statutory appeal I am not confined to examining whether the Panel erred in law. There is no such limitation in s.40 of the Medical Act 1983. My task is to decide whether the Panel was wrong. However, it is a striking feature of this case that the Panel heard live evidence from witnesses over some 20 days. The Appellant himself was examined, cross examined, re-examined and questioned by the Panel over several days. This gave the Panel a substantial advantage over myself. The same point has been made many times. The authorities were set out by Foskett J. in Chyc v General Medical Council [2008] EWHC 1025 (Admin) at [4] – [6]. The advantage was all the more important where the Panel’s task in this respect included assessing the reliability and credibility of witnesses – particularly the Appellant and the Applicant’s state of mind at various stages.[38]Ms Callaghan relied as well on the decision of the Court of Appeal in Raschid v General Medical Council [2007] 1 WLR 1460 where Laws LJ said at [20], “These strands of learning, then, as it seems to me, constitute the essential approach to be applied by the High Court on a section 40 appeal. The approach they commend does not emasculate the High Court’s role in section 40 appeals; the High Court will correct material errors of fact and of course of law and it will exercise a judgment, though distinctly and firmly a secondary judgment, as to the application of the principles to the facts of the case.” I am not sure, though, that this comment is applicable to the task of reviewing the Panel’s finding of fact as to dishonesty. The authorities which Laws LJ had collated concerned the choice of sanction. The issue in Raschid itself was whether the High Court had erred in altering the sanction imposed by the Fitness to Practise Panel. In that context, the description of the court’s task as a secondary judgment makes sense because of the Panel’s expertise and ability to judge what sanction is necessary to maintain the reputation of the profession. Similarly, the Panel is in a particularly good position to judge whether the facts as found constituted misconduct such as to impair a doctor’s ability to practise. But these are both stages in the Panel’s task that follow (or may follow) its findings of fact, and in this case, in particular the finding as to whether the doctor was dishonest.[39]Here the Panel noted that it “was for each company to decide on the correct code to use. This was so even where a code or its narrative did not correspond to that issued by OPCS, used in the NHS, or present in the BMA 1992 private practice guidelines.” I agree. The insurers’ codes are no more than a form of language which the insurers adopt to assist their assessors to deal with claims from doctors efficiently and fairly. Because the insurers could choose their own language, it is not really apt to say that their choice of language was “correct” or “incorrect”. The insurers’ codes meant whatever the insurers decided. The insurers’ codes were based on but not identical to the OPCS codes. The origin of the insurers’ codes in the OPCS codes did have the consequence that differences between the two, which would otherwise be apt to mislead, had to be made clear. Between 1993 and 1997 the Panel found that the way the Insurers’ defined their OGD codes was confusing, but in 1997 BUPA and in 1998 PPP revised their codes so that they were clear. The addition of the word “therapeutic” to code G4500 had this effect. As the Panel went on to say these schedules were “clear and unambiguous in requiring you to code G6500 for a diagnostic OGD.” Furthermore the letters from AXA PPP in 2004 “should have left you in no doubt about the appropriate coding.” In my judgment the Panel was plainly entitled to make these findings. It is not arguable that they were wrong to do so.[40]The Panel’s findings as to the Appellant’s state of mind after the letter of 17th March 2005 is also in my judgment unimpeachable and not wrong. They found, as they were entitled to do, that this letter made “absolutely clear [AXA PPP]’s position on the correct code to use.” By the word “correct” in this context, in my view, the Panel meant “to accord with the choice of code or language which AXA PPP had chosen to adopt”. As I have already observed, the Panel noted that this letter had prompted the Appellant to check AXA PPP’s schedule and this “also clearly indicated to you the correct codes.” In other words, as a result of the 17th March 2005 letter and his inspection of the Schedule, the Appellant knew that, when he used code G4500, this would be understood by AXA PPP to mean that he had carried out a therapeutic OGD.[41]In his letter of 20th April 2005 the Appellant asserted that G4500 was the “correct” code for a diagnostic OGD. But that argument could not alter the knowledge which the 17th March letter and his inspection of the Schedule had given him as to how AXA PPP would understand his use of this code. He still knew, in other words, that if he sent AXA PPP an invoice in the future for a “G4500” this would be taken by the insurer as meaning a therapeutic OGD. The Panel was entitled, and not wrong, to find that when he submitted such an invoice, knowing that he had only performed a diagnostic OGD, he was behaving dishonestly. As the Panel said, “After receipt of the 17th March 2005 letter, you were aware of the fact that, whatever your view on coding, you were incorrectly claiming. Your misleading actions from this time were deceitful.”[42]The position may very well have been different if the Appellant had included a narrative on his invoice which explained that he had performed only a diagnostic OGD. If that description had been combined with code G4500 he would have been in a good position to argue that his use of that code was intended to convey something different from what he knew the insurers to understand by that code. But this is not what he did. His narrative said, at most, that he had carried out an oesophago-gastro-duodenoscopy which is neutral as to whether it was a diagnostic or therapeutic OGD.[43]His 20th April 2005 letter referred to the rates in the BMA Guidelines, but that, too, was nothing to the point. The insurers did not dispute that the doctor was entitled to charge his own client whatever he wished (or, rather, whatever the two of them agreed). Their concern was that he was seeking reimbursement from them by falsely claiming that he had performed one medical procedure when in fact he had performed another. So far as the Appellant was seeking to rely on the BMA Guidelines to show that he was charging a reasonable sum for a diagnostic OGD, that was misplaced. The Monopolies and Mergers Commission had criticised the Guidelines as an improper restriction on competition.[44]The Panel referred to AXA PPP’s letter of 28th July 2005 as “further confirmation of the appropriate course of action to be taken by you in relation to claiming.” The FPP did not expressly refer to the Appellant’s apparent acquiescence in that position because he made no protest when AXA PPP said in the same letter that they would seek to recoup some £13,000 from him. However, in my view that is further support for its conclusion. The Appellant was without his secretary and did not wish to prejudice his long term relationship with the insurer. However, it is striking that in the face of this demand for the recovery of a not insubstantial sum, the Appellant did not even write a letter of protest.[45]There was evidence that some other practitioners may have shared the Appellant’s view as to G4500 being the “correct” code for a diagnostic OGD. However, I agree with Ms Callaghan that this evidence does not mean that the FPP’s decision was wrong. It had to focus on the Appellant’s state of mind and it did so.[46]Mr Moon criticised the Panel for not addressing the argument based on PPP’s audit of the Appellant’s claims in 1994 and 1998 which, Mr Moon submitted, supported the Appellant’s case that he honestly thought his practice of using G4500 for a diagnostic procedure was acceptable. Mr Moon pointed out that in cross examination, Dr Peck accepted that when the Appellant’s bill was referred to him in 1998 he would have appreciated that it was a diagnostic OGD which had been performed because the medical condition was described as “dyspepsia” and any procedure for that condition was likely to have been diagnostic. Yet on that occasion Dr Peck(a) had not objected to the use of Code G4500 and(b) had approved a fee of £220.[47]It is not quite correct to say that the Panel paid no attention to this argument. At p.10 of its decision it said (in connection with its finding that the Appellant had not been deceitful prior to 17th March 2005), “You were certain that your use of the codes was correct and that the insurance companies were wrong. You had apparently raised the issue of correct codes with PPP and BUPA many years earlier and in the intervening years had been paid without any problem.” But it went on to reiterate, “After receipt of the 17 March letter, you were aware of the fact that, whatever your view on coding, you were incorrectly claiming. Your misleading actions from this time onwards were deceitful.” The plain inference from the Panel’s reasoning was that Dr Saverymuttu could not honestly have thought that the message from AXA PPP as conveyed to him by that letter and by the Schedule which he then consulted was to be understood differently because of the way in which the referral had been dealt with 7 years previously or the outcome of an audit 11 years earlier.[48]Finally, I return to the observation which I made earlier. The Panel’s finding of dishonesty followed a very lengthy oral hearing at which, critically, the Appellant gave evidence over several days. It would be most unusual for an appellate court reviewing only a transcript of the hearing and the documentary evidence to overturn such a finding.[49]Accordingly, I find that the Panel was not wrong to find that the Appellant was dishonest in his dealings with the insurers after 17th March 2005.

Sanction

[50]I understood Mr Moon to accept that if the finding of dishonesty stood, he could not successfully challenge the finding of impairment or the sanction of suspension. This concession was realistic and right. Here my judgment is, as Laws LJ put it in Raschid, a secondary one that has to recognise the important advantage which the professional body has in deciding what is necessary to maintain the profession’s standards. Since the finding of dishonesty remains, I agree that a sanction of 12 months suspension was not wrong.

Conclusion

[51]For all of these reasons this appeal is dismissed.