Rauniar v General Medical Council [2011] EWHC 782 (Admin)

Case No CO/5495/2010[2011] EWHC 782 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 30/03/2011
Before
THE HON. MR. JUSTICE LLOYD JONES
Between
Dr. Arun Kumar RauniarAppellantGeneral Medical CouncilRespondent
Mr. Mark Sutton (instructed by Weightmans) for AppellantMr. Ivan Hare (instructed by the General Medical Council) for RespondentHearing Hearing dates: 22 nd and 23 rd February 2011
JudgmentThe Hon. Mr. Justice Lloyd Jones:
[1]This is an appeal by Dr. Arun Kumar Rauniar (“the appellant”) pursuant to section 40, Medical Act 1983 (“the 1983 Act”) against the decision of the Fitness to Practise Panel (“the Panel”) of the General Medical Council (“GMC”) at a review hearing on 14th April 2010 to impose a period of 12 months suspension on his registration. The Powers of the Court on a section 40 appeal.[2]Section 40 (7) of the 1983 Act provides: “(7) On an appeal under this section from a Fitness to Practise Panel, the court may—(a) dismiss the appeal;(b) allow the appeal and quash the direction or variation appealed against;(c) substitute for the direction or variation appealed against any other direction or variation which could have been given or made by a Fitness to Practise Panel; or(d) remit the case to the Registrar for him to refer it to a Fitness to Practise Panel to dispose of the case in accordance with the directions of the court, and may make such order as to costs (or, in Scotland, expenses) as it thinks fit…” (a) dismiss the appeal; (b) allow the appeal and quash the direction or variation appealed against; (c) substitute for the direction or variation appealed against any other direction or variation which could have been given or made by a Fitness to Practise Panel; or (d) remit the case to the Registrar for him to refer it to a Fitness to Practise Panel to dispose of the case in accordance with the directions of the court,[3]CPR 52.11(3), which applies to this appeal, provides that:
“(3) The appeal court will allow an appeal where the decision of the lower court was – (a) wrong; or (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.” (a) wrong; or (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.”
[4]The approach of the court on an appeal such as this was set out in Ghosh v General Medical Council [2001] 1 WLR 1915. There Lord Millett described the jurisdiction of the Privy Council, which at that time heard appeals such as this, in the following terms:
“33…The Board’s jurisdiction is appellate, not supervisory. The appeal is by way of a re-hearing in which the Board is fully entitled to substitute its own decision for that of the committee. The fact that the appeal is on paper and that witnesses are not recalled makes it incumbent upon the appellant to demonstrate that some error has occurred in the proceedings before the committee or in its decision, but this is true of most appellate processes. 34…the Board will accord an appropriate measure of respect to the judgment of the committee whether the practitioner’s failings amount to serious professional misconduct and on the measures necessary to maintain professional standards and provide adequate protection to the public. But the Board will not defer to the committee’s judgment more than is warranted by the circumstances…”
[5]In Raschid v General Medical Council [2007] 1 WLR 1460 the Court of Appeal addressed, more specifically, the proper reach of the High Court’s power on appeal under section 40 of the Medical Act 1983 to vary a sanction imposed on a practitioner by the Panel. Laws L.J. identified two strands in the authorities: “One differentiates the function of the panel or committee imposing sanctions from that of a court imposing retributive punishments. The other emphasises the special expertise of the panel or committee to make the required judgment.” (At para 16). He concluded: “These strands in the learning then, as it seems to me, constitute the essential approach to be applied by the High Court on a section 40 appeal. The approach they commend does not emasculate the High Court’s role in section 40 appeals: the High Court will correct material errors of fact and of course the 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.” (At para 20).

Background

[6]The appellant is a general practitioner contracted to Waltham Forest Primary Care Trust (“the PCT”). He formerly practised at Crawley Road Medical Centre, Leyton from May 1998 and at Vicarage Road Medical Centre, Leyton from June 2003.[7]The appellant came to the attention of the GMC in 2004 as a result of a complaint from a former patient. In the course of the investigation into this complaint the GMC received a letter from the Medical Director of the PCT raising concerns about his clinical performance, serious behavioural problems and cognitive difficulties. On 24th June 2005 the PCT decided contingently to remove the appellant from the performers list. That order was subsequently varied on an appeal to the Family Health Service Appeal Authority (“the FHSAA”).[8]As a result of these concerns the GMC invited the appellant to undergo a Performance Assessment. This took place in July and August 2005. The Performance Assessment comprised two main elements: peer review and a test of competence. This was a wide ranging assessment not limited to investigation of the particular matters which had led to the referral to the GMC. However the resulting assessment noted that the particular areas of concern leading to the assessment were inappropriate treatment and prescribing and poor relations with patients. The assessment team looked at 15 areas of the appellant’s performance as a doctor. No acceptable judgment was made in any area. The areas giving cause for concern were cover and records. The following areas were judged to be unacceptable: assessment, investigations, treatment, limits, laws, resources, communication, education, audit and relationships. No overall judgment was made on teaching, education or emergencies. In the tests of competence his performance was unacceptable. The assessment process highlighted considerable areas where his performance was deficient. It found that there was evidence that he failed to assess patients properly, sometimes apparently because he could not be bothered to do so. He failed to provide proper investigations. The assessment concluded that some of his ideas were dangerous. He lacked insight into risks to patients. The assessment observed that “in general he does not seem to accept help or advice from his peers and is felt to have no insight into his low levels of competence.” The assessment team concluded:
“The assessment team are of the opinion that Dr. R’s problems are so comprehensive that he should not continue working as a doctor unless he undergoes a comprehensive period of retraining and successfully completes a further performance assessment. Dr. R will find this to be difficult but may succeed with hard work.”
Dr. R will find this to be difficult but may succeed with hard work.”[9]These conclusions led to a hearing of the Interim Orders Panel on 5th January 2006. That Panel noted that the assessment had indicated that his performance was unacceptable and that he was not fit to undertake clinical practice. The Interim Orders Panel determined that it was necessary for the protection of members of the public, in the public interest and in the appellant’s own interests to make an order suspending his registration for a period of 18 months with immediate effect. This was an interim order intended to hold the position pending a full consideration by the Panel.[10]On 19th February 2007 the FHSAA, on the appellant’s appeal from the decision of the PCT, made an order of contingent removal from the PCT’s Performers List with varied conditions. These included a condition that the appellant should not work in any capacity as an NHS general practitioner except under the supervision of a workplace supervisor who is an accredited trainer for a period of six months from the commencement of such work. There was a further condition that he should agree with the Director of Postgraduate Medical Practice Education, or his nominated deputy, a Personal Development Plan (“PDP”) to address the deficiencies in his practice to include inter-personal skills, communication skills and consultation skills and to submit the PDP within two months of the date of the determination.[11]Professional training for doctors in the United Kingdom is carried out by various Deaneries, each covering a geographical area. On 27th February 2008 the appellant attended the London Deanery (“the Deanery”) to discuss how it could support his retraining needs. Those present included Professor Neil Jackson, Dean of Postgraduate General Practice, and his deputy Dr. Julia Whiteman. Following the meeting Professor Jackson in a letter to the appellant dated 27th February 2008 stated:
“We discussed the means by which the London Deanery provide you with retraining and reiterated the information already given to you at previous meetings with Dr. Whiteman. The information relating to the Induction and Refresher Scheme (“IRS”) can be found at [website reference]. We run the assessments for the scheme four times a year, the next round being in April. Dr. Whiteman advised you that since we only allow two attempts at the assessments it might be better if you deferred applying until the summer as you also have your GMC hearing to attend to in April. I reinforced for you the fact that there was no negotiation around meeting the criteria for joining the scheme nor for the way that the scheme operated. Specifically, if you were accepted onto the scheme and found a trainer with the capacity and willingness to retrain you, you would be retrained by that trainer in their practice, which would itself have been quality assessed as part of our trainer approval process. We explored the possibility of you working with a trainer outside the scheme. You are of course at liberty to explore this option, but we advised you that you would have to fund the process yourself and this would be outside of employment activity supported by the BMA. Dr. Whiteman advised you to contact Waltham Forest PCT to re-engage with their GP appraisal process now that you are back on their list. We realise that this is a little complicated as you are not involved in practice with patient contact, but you do have the specific areas identified by the FHSAA to address, the GMC may well highlight other areas to reflect on and you have the challenge of preparing for the Induction and Refresher Scheme assessments. This would be the first step in the process of developing a PDP for submission to a PCT as per your FHSAA requirements.”
[12]The hearing before the Panel took place between 26th November and 12th December 2007 and 23rd and 26th April 2008. The appellant was represented by Mr. Moon QC.[13]In its determination of 26th April 2008 the Panel referred to the determination on the assessment of the appellant’s professional performance. It noted that in the competence phase of the assessment he scored 56.5% in the knowledge test (where the minimum standard required was 68.5%), in the structured clinical examinations he scored 54% (where the minimum standard required was 70%) and in the simulated surgery test he scored 20.75% (where the minimum standard required was 50%). The Panel found that his fitness to practise was impaired by reason of his deficient professional performance.[14]The Panel then turned to consider the appropriate sanction. Counsel for the GMC had submitted that erasure was the appropriate sanction because of the appellant’s expressed attitudinal problems and lack of insight. The Panel first considered whether it would be sufficient to place conditions on the appellant’s registration. Here it referred to the GMC’s Indicative Sanctions Guidance (April 2005) which stated at paragraph 23:
“Conditions might be appropriate where there is evidence of incompetence or significant shortcomings in the doctor’s practice … but where the Panel can be satisfied that there is potential for the doctor to respond positively to retraining and supervision of his or her work. The purpose is to enable the doctor to remedy any deficiencies in his or her practice whilst in the meantime protecting patients from harm.”
In this regard Mr. Moon drew the attention of the Panel to Professor Jackson’s letter of 27th February 2008. The Determination then continued:
“The Panel agrees with the assessment team’s conclusions that your performance is likely to be improved by remedial actions. The Panel considers that there is potential for you to respond positively to retraining and supervision of your work and that this will enable you to remedy your deficiencies. The Panel considers that comprehensive conditions may assist you in addressing deficiencies in your practice and will also enable you to gain greater insight into matters, both of performance and attitude, which brought you before the GMC. The Panel also considers that conditions will address the public interest, particularly in relation to the protection of patients. Having taken all the factors in this case into account, the Panel has therefore determined that it would be appropriate, sufficient and proportionate to impose the following conditions on your registration for a period of two years.”
[15]The Determination then set out the conditions which included the following:
“6. You must work with the 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 • Assessment of patients’ condition • Providing or arranging investigations • Providing or arranging treatment • Working within limits of competence • Paying due regard to efficacy and the use of resources • Working within laws and regulations • Constructive participation in audit, assessment and appraisal • Communication with patients • Respect for patients, trust and confidentiality • Relationships with colleagues / GPs / teamwork • Record keeping • Arranging cover, delegation and referrals 7. You must forward a copy of your Personal Development Plan to the GMC within three months of the date on which these conditions become affective. 8. You must meet with the Director of General Practice Postgraduate Education, (or their nominated deputy), on a regular basis to discuss your progress towards achieving the aims set out in the Personal Development Plan. The frequency of your meetings is to be set by the Director of General Practice Postgraduate Education (or their nominated deputy). 9. You must allow the GMC to exchange information about the standard of your professional performance and your progress towards achieving the aims set out in your Personal Development Plan with the Director of General Practice Postgraduate Education (or their nominated deputy) and any other person involved in your retraining and supervision. 10. At any time that you are employed, or providing medical services, which require you to be registered with the GMC, you must place yourself and remain under the supervision of a remedial supervisor, as agreed by the GMC. Your Director of Postgraduate General Practice Education (or their nominated deputy) will be asked to assist in identifying a possible supervisor. … 14. You must confine your medical practice to general practice posts as a GP under the supervision of a named GP Trainer. … 17. You must obtain the approval of your Director of Postgraduate General Practice Education (or their nominated deputy), before accepting any post for which registration with the GMC is required. 18. 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).”
The Panel concluded with the following observation: “The Panel considers that a period of two years will be needed for you to address your retraining issues and give you sufficient time to prepare for and undergo a further performance assessment before your case is reviewed.” • Assessment of patients’ condition • Providing or arranging investigations • Providing or arranging treatment • Working within limits of competence • Paying due regard to efficacy and the use of resources • Working within laws and regulations • Constructive participation in audit, assessment and appraisal • Communication with patients • Respect for patients, trust and confidentiality • Relationships with colleagues / GPs / teamwork • Record keeping • Arranging cover, delegation and referrals

GMC Guidance for making referrals to the Postgraduate Dean or GP Director

[16]I was referred to a GMC document entitled “Guidance for making referrals to the Postgraduate Dean or GP Director”. It is not clear whether this document or a similar document was in force in 2008. The document provides in relevant part: “2. When deciding whether the doctor is suitable for remedial training, the Panel should consider whether(a) The doctor has insight into his problems;(b) The doctor is willing to address the problems;(c) There are clearly identifiable areas of deficiency that can be addressed through an educational or other intervention that is within the Deanery’s normal processes and practice to deliver… 4. The MOU (Memorandum of Understanding) between the GMC and COPMED [Confederation of Postgraduate Medical Education Deans] sets out the role of the PG Deanery’s as follows: The role of the PG Dean is to provide advice and professional support to facilitate rehabilitation of doctors. a … b For doctors who are not appointed to or substantively employed in a Deanery training programme, or at all, the PG Deanery will see doctors referred by the GMC who work in their catchment area, or who worked in their catchment area prior to fitness to practise procedures (subject to referral criteria negotiated locally by the Deanery and held in the public arena). The PG Deanery will:• Support the referred doctor in developing an action plan to address identified weaknesses in performance• Agree with the referred doctor, the GMC and employing body a means and timescale for monitoring the objectives and the plan• Offer information with regard to career opportunities• Explain how to access training placements through open competition• Identify sources of appropriate educational supervision, coaching or mentorship …• Provide a report to the GMC relating to the extent to which the doctor has cooperated with and benefited from the above (a) The doctor has insight into his problems; (b) The doctor is willing to address the problems; (c) There are clearly identifiable areas of deficiency that can be addressed through an educational or other intervention that is within the Deanery’s normal processes and practice to deliver… a …• Support the referred doctor in developing an action plan to address identified weaknesses in performance• Agree with the referred doctor, the GMC and employing body a means and timescale for monitoring the objectives and the plan• Offer information with regard to career opportunities• Explain how to access training placements through open competition• Identify sources of appropriate educational supervision, coaching or mentorship …• Provide a report to the GMC relating to the extent to which the doctor has cooperated with and benefited from the above

COPMED Memorandum of Understanding

[17]The memorandum of understanding referred to above governs the relationship between the GMC and the Deaneries. Paragraph 9 of the Memorandum states that postgraduate Deans are responsible for organising remedial training for doctors. Paragraph 14 of the Memorandum is in very similar terms to paragraph 4b of the Guidance set out above. Events following the April 2008 Determination of the Panel.[18]The appellant then approached a number of practitioners to ask if they would be willing to retrain him. Some two or three were willing to do so provided funding was provided and Deanery approval was obtained. However, a letter from Dr. Whiteman of the Deanery to one of the doctors approached stated that “we are encouraging him to engage with the Deanery centrally and to apply retraining through the normal route of the Induction and Refresher Scheme…”[19]Dr. Anthony Hutchings indicated that he was willing to act as the appellant’s supervisor. Dr. Hutchings then contacted the Deanery to ask whether it was involved with the appellant’s educational supervision. On 18th August 2008 Dr. Whiteman wrote to Dr. Hutchings stating that the appellant was a client of the Deanery Performance Unit. “The route that we are encouraging him to take back into practice is via the Induction and Refresher Scheme…however Dr. Rauniar has not yet taken the assessments for this scheme to allow him access to Deanery approval for a retraining placement and funding to cover his salary and the trainer’s grant.” Having discussed the matter with Dr. Whiteman, Dr. Hutchings informed the appellant that he felt that he should have Deanery recognition for the retraining package. Therefore he considered that the only way forward was to commit to the Deanery retraining scheme. He hoped that with the Deanery’s participation he might be able to supervise the appellant at his practice at a later date. It seems clear therefore that the Deanery was telling potential trainers that any retraining must be through its Induction and Refresher Scheme (IRS).[20]By letter dated 18th June 2008 to Dr. Whiteman, Mr. Chaudhary of the British Association of Physicians of Indian Origin (BAPIO) indicated that the Association was assisting the appellant. Mr. Chaudhary referred to the advice the appellant had received from the Deanery that he would have to satisfy the conditions of entry for the Induction Refresher Scheme. Mr. Chaudhary observed that in relation to the regulations for the IRS:
“These appear to be generally designed for those doctors who have been away from General Practice as a result of career break (Returners). While some parts of the scheme are appropriate for Dr. Rauniar’s situation, he does not squarely fall into the category of Returners and some of the regulations do not appear appropriate for him. An important difference between a Returner and Dr. Rauniar is that when a Returner makes an application under the I and R scheme his current state of knowledge is not known; therefore to identify his training needs the Deanery must carry out an assessment. However the training needs of Dr. Rauniar have been thoroughly assessed by the GMC and the areas where he requires training have been clearly identified. Consequently there should be no need for him to be assessed again. Indeed a Deanery assessment may well end up concluding differently from the GMC assessment, thereby leading to confusion, which will be clearly undesirable for all concerned. We would therefore request that you allow Dr. Rauniar to undergo the required training without subjecting him to further assessment.”
[21]Dr. Whiteman replied to Mr. Chaudhary by letter dated 18th June 2008:
“We discussed [with the appellant] the means by which the London Deanery could provide him with retraining and reiterated the information already given to [him] at previous meetings namely the only route that we have for retraining is through our Induction and Refresher Scheme and we do not offer any alternative. I note the points you make why you feel that the scheme is not appropriate for Dr. Rauniar, specifically that you think that it is not appropriate for him to undertake our assessments as he has already been assessed and found to be outside of the standard set by “Good Medical Practice”
. However our assessments are not only an educational needs analysis but also an indication of the knowledge and skills of the GP wanting to enter the scheme and whether their knowledge and skills fall within safe parameters for patient safety in the context of supervised practice within the scheme. If Dr. Rauniar applies for the scheme and is successful it is heartening to know that his local trainer is willing to work with him. When we met in February Professor Jackson reinforced the fact that there was no negotiation around this as a means of accessing GP retraining through the London Deanery. I must advise you that this is still the case. When we met in February we did discuss the possibility of Dr. Rauniar working with a trainer outside the scheme. He is of course at liberty to explore this option, but we advised him that he would have to fund the process himself and that this would be outside of employment activities supported by the BMA. I note that the trainers expressing a willingness to retrain Dr. Rauniar local to Waltham Forest have indicated that they would only take this on with Deanery support. Were Dr. Rauniar to retrain outside of the Induction and Refresher Scheme this would not be with the support of the Deanery. I regret that I am not in a position to negotiate over this matter. I would urge you to encourage Dr. Rauniar to reconsider the option of the Induction and Refresher Scheme.”[22]Mr .Chaudhary responded by letter dated 24th June 2008 to Dr. Whiteman. He explained that the appellant’s situation had changed since the February meeting. His registration was now subject to certain conditions and he set out in the form of a table the role of the Deanery in relation to condition 6, 8, 10, 17 and 18. Mr. Chaudhary stated that the conditions could be fulfilled without the appellant having to enter the Deanery’s IRS. However because of the conditions his situation could only be progressed with the involvement of the Deanery.[23]By letter dated 30th June 2008 Dr. Whiteman suggested the appellant attend a further meeting with Professor Jackson and herself so that they might discuss how the Deanery might best help him. However she reiterated that with regard to his requirement to retrain the only route that the Deanery could offer was via the IRS.[24]The meeting took place on 14th July 2008. A letter dated 15th July 2008 from Professor Jackson to the appellant records what happened at that meeting. The appellant had taken to the meeting a draft PDP. The conditions imposed by the Panel required that he lodge this with the GMC within three months. Dr. Jackson noted that he would expect the appellant’s NHS appraisal to be part of the process and realised that it might not be possible for him to have arranged that by the deadline. Professor Jackson then turned to the subject of retraining:
“You are required to work with the Deanery and we explained to you again that the route that we offer for this in the London Deanery is via our Induction Refresher Scheme. As we said before this is a quality assured, evidence based scheme and is dependent on the GP demonstrating a minimum level of competence with regard to knowledge and skills as a GP in order for them to be permitted to start retraining at clinical settings. We had discussed the details of the scheme with you at previous meetings and as you are aware the information relating to the scheme is available on our website. We reiterated the need for me to take responsibility for quality assuring the training, the impact of retraining someone in your circumstances on the training practice involved, including any other learners that might also be assigned to that practice at the same time and above all patient safety. We recognise the need for anyone involved in the process to have to operate within the framework of “Good Medical Practice” and I am accountable to the Postgraduate Medical Education and Training Board (PMETB) to ensure that their quality assurance standards are met, the first of those being patient safety. Therefore I had to advise you that it would not be possible for the Deanery to arrange, approve or provide funding for any retraining placement that fell outside of our Induction and Refresher Scheme. You advised us that you had had an expression of interest from one of our trainers to provide you with a supervised placement in their practice. However this, as we discussed, does not change my position as regard to the need to satisfy our governance criteria for retraining. We agreed that you would explore with the GMC whether they would be happy for you to pursue this route, bypassing the Induction and Refresher Scheme, having fully informed your prospective trainer that they would be embarking on retraining you without my support or approval.”
[25]On 23rd July 2008 the GMC wrote to the appellant’s then solicitors (Radcliffes Le Brasseur) referring to Professor Jackson’s letter of 15th July 2008 and stating that it was understood that there would be a delay in the submission of the PDP. It asked that the PDP be submitted as soon as possible. It also asked for confirmation as to what arrangements were in place in relation to a mentor. On 4th August 2008 Radcliffes Le Brasseur replied complaining that the appellant was required not merely to satisfy the GMC that he had addressed the deficiencies identified in its performance assessment but also to comply with the requirements of the London Deanery and rectify any failings which may be identified by its pre-assessment. The letter stated that the appellant was aggrieved at the prospect of having to undergo a further assessment before being able to remedy the deficiencies identified in the performance assessment and stated that the lack of progress in compliance with the conditions was due to the Deanery’s requirement for him to undergo this further assessment which would not be possible until September 2008 at the earliest. As a result he had not been able to return to practice under the supervision of a named GP trainer and this difficulty had also led to the delay in the appointment of a mentor. However, in order to overcome the current impasse the appellant was preparing to undergo the Deanery’s assessment. The letter did, however, ask the GMC to advise if it had any suggestions as to an alternative course for the retraining.[26]On 6th August 2008 Mr. Edgar of the GMC responded that the appellant was free to explore other avenues in regard to his retraining but the GMC was not in a position to help him in this respect. He might, however, wish to approach the National Clinical Assessment Service for further advice.[27]On 15th August 2008 Dr. Whiteman wrote to Mr. Edgar at the GMC stating that the Deanery was trying to persuade the appellant to pursue retraining through the IRS. The letter also stated that the Deanery had not discussed with the appellant how they might identify a mentor and he had not requested that they action that specific requirement. (While it is true that Mr. Chaudhary’s letter of 24th June 2008 does mention the obligation under condition 18, Dr. Whiteman’s comment seems to be entirely fair.)[28]On 20th August 2008 the appellant notified the Deanery that despite Dr. Whiteman’s letter to Dr. Ivbizaro at the PCT, who was responsible for preparing the appraisal, Dr. Ivbizaro had not contacted him.[29]On 20th August 2008 the Deanery informed the appellant that while Dr. Whiteman thought that his draft PDP was a good start the Deanery preferred a particular template which it enclosed and suggested that he transfer it into that template.[30]In a letter received by the appellant on 1st September 2008 the PCT advised him that his appraisal was now due and that the appraiser was Dr. Grenville.[31]Arrangements were then made for the appellant to sit the MCQ test on 26th September 2008. The test comprised two limbs: Clinical Problem Solving and Situational Judgements. If a candidate passes this first stage there is a further stage involving Simulated Surgery. In the event, the appellant failed the first stage. The guidance to the Clinical Problem Solving test states that the topics will be taken from areas with which a Foundation Programme Year 2 Doctor would be expected to be familiar. It also states that there are no questions requiring a specific knowledge of general practice.[32]In the Situational Judgment test the appellant scored 189. In the Clinical Problem Solving test he scored 192. In each case the score was less than the fifth percentile (i.e. this suggests that this score was lower than at least 95% of candidates). His overall score was 381 when the pass mark was 480.[33]On 7th November 2008 the appellant sent to the GMC his PDP. It was on the Deanery approved template. On the 7th November 2008 Dr. Whiteman wrote to Mr. Edgar at the GMC stating that she had not approved the version of the PDP which the appellant had sent to him. “Reviewing it reveals that it is a list of activities covered retrospectively rather than a plan for how he intends to address the deficiencies identified in his practice.” She also stated that so far as she was aware the appellant had not made contact with Dr. Grenville in relation to his NHS appraisal. (In fact the appellant had already told Dr. Whiteman on 20th August 2008 that he was having difficulty in obtaining a response from Dr. Grenville.)[34]By letter dated 27th October 2008 Dr. Whiteman informed the appellant that although the marking system was complicated his score was compared to national standards and in both categories he scored in the bottom 5% of candidates. This was significantly below the standard required to pass and she recommended that he spend a significant amount of time studying before he re-sat for what would be his final attempt. She also asked the appellant to update her with regard to his appraisal. She also proposed that they meet to discuss the need for his to work with a mentor approved by the Deanery.[35]It was at this stage that the appellant approached other Deaneries. In this regard he approached Dr. Barry Lewis, Director of the Postgraduate GP Education, North Western Deanery. In a letter dated 9th January 2009 to the appellant Dr. Lewis explained that the Northwest Deanery “manage[s] entry into and exit from returner programmes in the same way as the London Deanery.” He then referred to a telephone conversation with the appellant which had taken place earlier that day. “During our telephone conversation I expressed my disappointment that neither your curriculum vitae nor your email documentation made mention of the conditions applied to your registration by the GMC in the hearing of April 2008. I explained that this is particularly significant as the returner schemes are not suitable for those doctors requiring specific remediation of identified performance problems. The detail held on the GMC site demonstrate a wide range of clinical and managerial needs that could not be met in a limited six month placement and it would be inappropriate to proceed further with consideration of a returner programme. I explained that in this Deanery our returners are sponsored by the PCT that holds their performers list registration for a six month whole time equivalent post within a training practice, having satisfied the knowledge test used by both London Deanery and ourselves and having undertaken either a simulated surgery or other forms of skills based test. … We have come to similar arrangements for remedial programmes based on GMC or NCAS reports in partnership with PCTs holding a doctor’s Performers List registration. We make a judgement about the length of time required in remediation based on the findings of the GMC or NCAS assessment as well as undertaking our own entry knowledge test. This is essentially to ensure patient safety for the receiving training practice. I am afraid therefore I cannot sanction a returner programme in the North Western Deanery for you.”[36]On 10th February 2009 the appellant commenced proceedings in the Employment Tribunal against the London Deanery and Dr. Whiteman personally alleging race and age discrimination. In particular he complained about the demand that he participate in the MCQ assessment as a requirement of receiving remedial training. I was told that those proceedings have subsequently been discontinued.[37]By letter dated 23rd February 2009 to the GMC, Weightmans, who were now the solicitors acting for the appellant, stated that they hoped that the service of the discrimination claim would produce a change in attitude on the part of the Deanery. However, if the Deanery remained unwilling to assist, it was envisaged that the appellant would ask that his case be re-listed before the Panel with the view to the current conditions being varied so as to make it possible for him to comply with them. On 24th February 2009 Mr. Edgar of the GMC replied stating that the best course might be to refer the matter for an early review by the Panel. On 20th March 2009 Weightmans asked the GMC whether it could identify a possible trainer for the appellant. On 25th March 2009 Mr. Edgar replied that he was sorry that he could not help further in that regard.[38]On 18th March 2009 the appellant sent an email to Dr. Grenville of the PCT asking when he would receive his appraisal. Thereafter the appellant repeatedly requested the appraisal. On 16th July 2009 he received an unsigned copy. However a signed copy was not produced until 17th November 2009 and then only following a letter from the appellant’s solicitors dated 7th November 2009.[39]By letter dated 2nd December 2009 the GMC notified the appellant that they had reviewed his case and in the light of this information it appeared that he may not have complied with the conditions imposed on his registration. In particular it appeared that he may be in breach of conditions 6, 7, 8 and 18.[40]On 23rd December 2009 Weightmans wrote to the Prof. Jackson explaining that although the appellant had been appraised by Dr. Grenville at the end of 2008 the signed copy of the appraisal was not received until 17th November 2009. The letter referred to Dr. Whiteman’s previous indication that completion of this appraisal was the first step in putting together the PDP and enclosed a copy of the signed appraisal. It also enclosed a further draft PDP for the Deanery’s comments. On 8th January 2010 Professor Jackson approved the PDP. With regard to the appointment of a mentor, Professor Jackson directed the appellant to London Deanery Mentoring. The Review Hearing.[41]The review hearing before the Panel took place between 12th and 14th April 2010. The appellant was represented by Mr. Sutton who also appears for him on this appeal.[42]In opening the matter for the GMC Miss Bex stated that she did not make a strong submission that the appellant was culpable in respect of the failures to comply with conditions. She considered that it was not the most productive way forward to spend a considerable amount of time in attempting to attribute blame in that regard.[43]In her opening Miss Bex (Day 1/22) said initially that when the Panel had imposed the conditions in April 2008 it did not know the structure that the London Deanery had in place for retraining. In particular it did not know that retraining could only be via the IRS. She suggested therefore that the constructive way forward was to concentrate on whether it was still possible to remedy the appellant’s professional performance. He had now been out of practice for two further years. The question was whether it was appropriate that he be given or continue to be given the opportunity to remedy his professional performance. It was now clear that that would not be possible within the structure of the Deanery and the IRS.[44]However, later that day she returned to this topic to correct her earlier statement. She pointed out that Prof. Jackson’s letter of 27th February 2008 had been before the Panel in April 2008. (In fact, as we have seen, it was referred to in the ruling of April 2008.) Miss Bex pointed out that it followed that the Panel in 2008, when considering the appropriate conditions to impose, knew that the London Deanery would require an assessment as a threshold and that that test could only be taken twice. She went on to say that it could not be said whether the 2008 Panel were aware what the threshold was or whether that was the only thing that would be available to the appellant. However, she also pointed out that it had been made clear to the appellant since 2005 that the IRS was the only means that could be provided for retraining by the Deanery. (Day 1/36).[45]In its Determination on Impairment delivered on 13th April 2010 the Panel referred to the fact that the previous Panel had decided that the appellant’s fitness to practise was impaired by reason of his deficient professional performance. It had therefore imposed conditions on registration for two years. It had directed a review before the end of the period of conditional registration. On behalf of the appellant it was admitted that his fitness to practise was impaired. However, it was submitted that this was solely on the basis of the findings made at the hearing in April 2008. He submitted that the breaches of the conditions were due to factors outside his control.[46]The Panel noted that the IRS was the only route by which the London Deanery offered retraining for GPs and that only two attempts were permitted at the assessment process. The appellant had been informed that no practical progress could be made unless until he had passed the MCQ examination. He had failed that examination at the first attempt on 26th September 2008. On 1st December 2009 the appellant’s representative had informed the GMC that he was not planning to take the assessment in the next round because he was critical of the fairness and the nature of the assessment.[47]The Panel referred to the NHS appraisal which was necessary for the drawing up of a PDP. The Panel noted that the appellant had experienced considerable difficulty arranging the appraisal. When eventually it took place in December 2008 it took a full year before he was able to obtain a signed copy. In this regard it stated:
“The Panel is concerned at the time taken to arrange this appraisal and provide you with results in the appropriate format. It considers it unacceptable that you were only able to obtain the signed document following the intervention of your solicitor.”
[48]The Panel referred to the attempts by the appellant to identify independent trainers. However a trainer who had been willing to help had withdrawn on learning that the London Deanery would not support the process.[49]The appellant had been given an extended time to submit his PDP. It was received in November 2008. A further revised version had now been received.[50]With regard to the appointment of a mentor the Panel observed:
“…the London Deanery appears to have felt that this would not be possible until a PDP had been agreed, since they saw the mentor’s role as overseeing part of the work involved. The Panel finds this surprising. Its understanding of the role of a mentor is that of a confidant who provides support and advice throughout the period of conditionality, rather than directly supervising the work involved.”
[51]The Panel expressed its conclusion as follows:
“The Panel has considered all the issues raised on your behalf and all matters drawn to its attention on behalf of the GMC and is of the view that you have made no progress since your fitness to practise hearing in April 2008. You have been out of practice since 2004 and have not undertaken any formal retraining during this time. While the Panel recognises that your failure of the London Deanery’s MCQ Examination has hindered your access to its retraining scheme, it views your failure of that examination which is set at the level of Foundation Programme Year 2, as a grave concern. It has seen no evidence to show that any of the specific failings identified by the GMC assessors have been properly addressed and remedied. It notes that in all the circumstances the further GMC performance assessment could not take place. The Panel has accordingly determined that your fitness to practise is impaired by reason of your deficient professional performance. The Panel further considered whether you had breached any of the conditions currently imposed in registration. It noted that you have admitted the breach of condition 6 and 7 and therefore finds these as breached. The Panel has also found that there has been a technical breach of conditions 8 and 18. The Panel is of the opinion that both of these conditions were dependent on your compliance with conditions 6 and 7.”
[52]On 14th April 2010 the Panel delivered its Determination on Sanction. It stated that it had considered whether it was necessary for the protection of members of the public, in the public interest or in the appellant’s interests to make a direction in relation to his registration. In doing so it had taken into account the principle of proportionality, balancing the public interest against the appellant’s own interests. The public interest included the protection of patients, the maintenance of public confidence in the profession and upholding proper standards of conduct and behaviour. It stated that it had taken into account the advice of the Specialist Advisor and the Legal Assessor.[53]Miss Bex, on behalf of the GMC, had submitted that the appropriate sanction should be one of at least conditional registration. Mr. Sutton on behalf of the appellant had invited the Panel to vary the existing conditions to a degree that would enable him to undertake a formal retraining programme outwith the London Deanery’s IRS.[54]The Panel stated that it had taken account of the Indicative Sanctions Guidance.[55]The Panel concluded that as he had not practised medicine since September 2004 and had not yet undertaken any formal retraining, it would not be appropriate to take no action in relation to registration. It then considered whether imposing a further period of conditional registration would be proportionate and appropriate. In this regard it referred to the following matters:(1) The GMC performance assessment undertaken in July 2005 indicated that the standard of his professional performance was deficient in many areas and unsatisfactory in all respects.(2) The previous Panel considered that the defects may be remediable and that a two year period of conditional registration was needed for him to address these retraining issues.(3) “In September 2008 you failed the London Deanery’s MCQ Examination. The Panel heard that the examination is designed to test the knowledge of a doctor at Foundation Programme Year 2 and your score was in the bottom 5% of candidates. This is of grave concern to the Panel. The Panel was further informed that although you are permitted one further attempt at the examination, you have so far declined to take the opportunity. The Panel has heard that the MCQ examination is specifically designed to assess the basic knowledge of doctors in a similar non-practising situation to yourself. It considered that it should not prove an unreasonable test for a doctor of your long experience. Given that you have been out of practice since September 2004, the Panel considers that obtaining a place on the London Deanery’s Induction and Refresher Scheme remains an appropriate way forward in your circumstances.”(4) The Panel accepted that he had experienced difficulties beyond his control in relation to the appraisal and that this contributed to delay in preparing the PDP. “Nevertheless, it is not satisfied that you have demonstrated sufficient personal effort, in terms of addressing your deficiencies. It considers that two years should have given you ample time to comply fully with the conditions imposed on your registration. The Panel has considered the documents and certificates you have provided as evidence of your Continuing Professional Development (CPD) but has seen no evidence of how you have appropriately utilised your learning. You have demonstrated on two occasions, by way of your GMC performance assessment in 2005, and the London Deanery’s MCQ Examination in 2008, that the standard of your clinical skills and knowledge are well below that expected of a qualified medical practitioner.”(5) The Panel stated that it was particularly concerned in relation to the safety of patients. The appellant had not passed any aspect of the GMC assessment.(6) “You have now been out of actual practice since September 2004 and although you have kept up with routine CPD, the Panel has seen no evidence of any understanding on your part of the need to retrain in almost every aspect of your clinical practice. In your oral evidence to us, you appeared to envisage returning to virtually normal practice after three or four weeks of close supervision. The Panel therefore considers that a further period of conditional registration would indeed pose a risk to patient safety, which is the Panel’s paramount concern. The Panel has concluded that it would be insufficient to extend the period of conditionality or vary the conditions.”(7) The Panel then referred to paragraph 70 of the Indicative Sanctions Guidanceand concluded: “Having considered all the factors in this case, the Panel has determined to suspend your registration for a period of 12 months. The Panel considers that this period will afford you time to undertake remedial actions specifically aimed at preparing you to undertake the appropriate retraining needed before you can return to clinical practice. The Panel would expect that in due course you will have to undergo a further GMC performance assessment (as recommended by the original assessment team) prior to returning to independent clinical practice.”(8) The Panel decided not to implement the suspension with immediate effect. The effect of the present appeal has been that the suspension has not been brought into effect.

The Deanery’s Induction and Refresher Scheme (IRS)

[56]Although the breaches of conditions referred to the Panel did not include those relating to supervision and remedial training, these were matters of central importance at the review hearing. At the forefront of his submissions on this appeal challenging the sanction imposed by the Panel, was Mr. Sutton’s criticism of the Deanery’s insistence that the appellant complete the IRS course as part of his retraining.[57]First he complains that the conditions imposed by the Panel in 2008 did not require the appellant to follow any particular course. He points to the fact that the conditions imposed are frequently encountered and are taken from a bank of possible conditions published by the GMC. He submits that if it had been the intention of the Panel in 2008 to impose a requirement that a particular course be completed it would certainly have said so in terms.[58]However, the conditions imposed in 2008 clearly contemplate the London Deanery performing a specific role. Condition 6 requires the appellant to work with the Director of Postgraduate General Practice Education (“the Director”) to formulate a personal development plan. Condition 8 requires him to meet the Director on a regular basis to discuss progress towards achieving the aims in the PDP. Condition 10 requires him to remain under the supervision of a remedial supervisor. The Director is to be asked to assist in identifying a possible supervisor. Condition 17 stipulates that the approval of the Director is required before the appellant may accept any post. Under Condition 18 the mentor has to be approved by the Director. Accordingly it is clear that a Panel in imposing these conditions intended the appellant to work closely with the Deanery. Furthermore, I note that the conditions imposed by the PCT on 12th March 2007 also contemplate a major role for the London Deanery. Under these conditions the appellant is not to work except under the supervision of a supervisor who is a GP trainer accredited by the London Deanery and he is required to agree with the Director a personal development plan to address his deficiencies in practice.[59]The Panel which imposed the conditions in 2008 would not be expected to have detailed knowledge of any particular course. The GMC itself does not provide such courses. This is a matter which is properly left to the Deaneries. However, it is clear that the Panel in 2008 knew what facilities were available within the London Deanery for retraining this appellant. The attention of the Panel in 2008 had been drawn to Professor Jackson’s letter of 27th February 2008 which set out “the means by which the London Deanery provide you with retraining”. It referred to the IRS. It explained that assessments for the scheme are held four times a year and that only two attempts are allowed. It stated that no negotiation would be allowed around meeting the criteria for joining the scheme nor in relation to the way in which the scheme operated. The letter explained that if the appellant were accepted onto that scheme and found a trainer he would then be retrained in that trainer’s practice which would itself have been quality assessed as part of the Deanery’s trainer approval process. Although the letter stated that he was at liberty to explore the possibility of working with a trainer outside the scheme, the Panel in 2008 would have been aware from this letter that the IRS was the method of retraining employed by the Deanery. We have seen that that letter was expressly drawn to the attention of the Panel before it imposed the conditions. Furthermore it referred to the letter at page 18 of its Determination of April 2008. The Panel in imposing the conditions would clearly have had in mind that this was the route by which retraining would be facilitated by the Deanery.[60]These matters were drawn to the attention of the Panel in 2010 by Miss Bex. The Panel in 2010 was also informed (Day 1/23) that the IRS had been adopted by other Deaneries. The Panel in 2010 in its Determination on Impairment (Day 2/2) noted that the IRS is the only route by which the London Deanery offered retraining for GPs and that only two attempts are permitted at the assessment process. When it, subsequently, came to address sanctions, it was fully aware of the understanding of the Panel in 2008 that the only method of retraining provided by the London Deanery was the IRS.[61]Secondly, Mr. Sutton complains of the Deanery’s failure to facilitate any other means of remedial training and of its conduct in effectively thwarting any other form of retraining. Here he draws particular attention to Condition 10 which states that the Director “will be asked to assist in identifying a possible supervisor”. Mr. Sutton submits that the Deanery acted unreasonably in its refusal to facilitate or indeed to countenance an arrangement for supervision outside the IRS scheme.[62]The obligations of the Deanery in respect of doctors not currently in training, such as the appellant, under the Memorandum of Understanding between the GMC and COPMED are very limited. For example, they extend to explaining how to access training placements by open competition and identifying sources of appropriate educational supervision, coaching or mentorship. This is also reflected in the “GMC Guidance for making Referrals to the Postgraduate Dean or GP Director” paragraph 4b of which is in very similar terms. Furthermore, I note that paragraph 2c of this Guidance states that when deciding whether a doctor is suitable for remedial training the Panel should consider whether there are clearly identifiable areas of deficiency that can be addressed through an educational or other intervention that is within the Deanery’s normal processes and practice to deliver. It appears therefore that Mr. Hare, on behalf of the GMC, is correct in his submission that a Deanery is under no obligation to provide any particular course, let alone a course which is tailor-made to the needs of a particular doctor. I am unable to see anything unreasonable in the position of a Deanery which states that it is willing to make arrangements for training but that they must be within the Deanery’s established scheme with all the protections that provides for participants and patients.[63]I have already drawn attention to the important role accorded to the Deanery under the conditions. Given the position taken by the Deanery in relation to the only course of training it was prepared to countenance, it would not have been possible for the appellant to comply with his conditions by going elsewhere. However, it would have been open to him to make an application to the Panel for a review and the amendment of the conditions. At one point this was contemplated because it is referred to in the letter from the appellant’s solicitors, Weightmans, to the GMC dated 23rd February 2009. However, in the event no such application was made.[64]Thirdly, the most fundamental criticism made by Mr. Sutton of the IRS, both before the Panel in 2008 and before this court on appeal, is that the IRS was unsuitable for the needs of the appellant. On this appeal he submits that the Panel had no evidence on which to base its ultimate conclusion that the IRS was the right way forward in the circumstances. Alternatively he submits that the evidence before it pointed to a contrary conclusion.[65]Mr. Sutton refers to the stated aims of the IRS as they appear in the Course Description published in 2006:
“(a) To attract UK GPs back into General Practice who may not currently be working in General Practice…these may be • GPs working exclusively as locums • Qualified GPs not working at all • Qualified GPs who are working, but not within general practice (b) To offer a suitable induction and adaptation programme to EU GPs… The Deanery, on behalf of PCTs, needs to ensure that all these GPs…are ready and fit for purpose to work as independent practitioners in London. Inevitably, the needs of each GP will be different. Many will feel unsure about how competent they are to practise and the majority will require a period of refresher training. … The initial assessment process is not only aimed to select those that would benefit from the short intense induction into General Practice but also to produce an “educational prescription” for these doctors so that they can identify their learning needs quickly.”
A revised version of the guide to IRS published in December 2008 states under the heading “Suitability”: “The GP Returner scheme is now known nationally as the GP Induction and Refresher Scheme. The purpose of the GP Induction and Refresher Scheme is to help doctors return to NHS general practice who have been out of active practice for 2-3 years. These doctors will not be on a PCT Performer’s list due to the following reasons • Not in active practice in UK general practice • Working in another speciality • An EU trained GP.” (original emphasis) • GPs working exclusively as locums • Qualified GPs not working at all • Qualified GPs who are working, but not within general practice • Not in active practice in UK general practice • Working in another speciality • An EU trained GP.” (original emphasis)[66]Mr. Sutton submits that the purpose of the IRS is to attract GPs back into general practice who may not currently be working in general practice as well as offering a suitable induction programme to GPs qualified in the EU who wish to practise in the United Kingdom. The course is described as a “short intense induction into general practice”. In this regard he also refers to the letter from Mr. Chaudhary dated 18th June 2008 where Mr. Chaudhary argues that the IRS scheme is designed for those doctors who have been away from general practice as a result of a career break and that while some parts of the scheme are appropriate for the appellant’s situation he does not squarely fall in to the category of returners. Furthermore he relies on the letter of Dr. Lewis dated 9th January 2009 in which Dr. Lewis states that returner schemes are not suitable for those doctors requiring specific remediation of identified performance problems.[67]So far as the description of the IRS in the October 2006 document is concerned, it seems to me that the appellant does fall within the general category described. He is someone who is not currently working in general practice. Indeed he has been out of practice for a number of years. Furthermore, the more recent edition of this document published in December 2008 states that the IRS is appropriate to help doctors return to NHS general practice who have been out of practice for two to three years. These doctors would not be on a PCT Performers list because they have not been in active practice in United Kingdom general practice. It seems to me that this is apt to describe the situation of the appellant.[68]There is certainly force in the appellant’s submission that he required more than the “short intense induction into general practice” described in the October 2006 edition of the document. However, it was never proposed that such a course should be the totality of the retraining received by the appellant. As Dr. Lewis pointed out on his letter dated 9th January 2009 such a scheme may not provide specific remediation of identified performance problems. However, this was addressed elsewhere in the conditions imposed in 2008. In particular under condition 6 the appellant was required to work with the Director to formulate a personal development plan specifically designed to address the twelve areas of deficiencies identified there. The appellant was required to address all of these serious concerns in addition to completing the IRS. The participation of the appellant in the IRS, had he gained access to it, would have lasted only six months. However the conditions were imposed for a period of two years. Clearly the completion of a scheme such as the IRS was only part of what he was required to do in order to remedy his deficiencies.[69]Finally in this regard, all of these matters were fully argued before the Panel in 2010. The Panel was fully aware of the nature of the IRS and the part which it could play in the remedial training of the appellant. This is an area in which the Panel possesses a particular expertise and the court should be slow to substitute its own views on such issues. In any event, I am simply unable to conclude that the evidence before the Panel pointed to the unsuitability of the IRS, let alone that there was no evidence upon which the Panel could conclude that the IRS was an appropriate element of the retraining of the appellant.

The MCQ Examination

[70]Before the appellant could gain access to the IRS he had to pass a multiple choice question examination (“the MCQ examination”). Mr. Sutton’s criticisms of this requirement may conveniently be considered under three headings.(1) Criticism of the imposition of any gateway requirement to the IRS.(2) Criticism of the marking system.(3) Criticism of the reliance placed by the Panel on the appellant’s results in the MCQ examination in its Determinations. (1) The existence of a gateway requirement[71]Here Mr. Sutton makes a number of criticisms. First, he says that the Deanery’s role is to facilitate the implementation of the decision the Panel has taken in relation to remedial training. He submits that it is inimical for the Deanery to set up a further assessment or to require the appellant to clear a further hurdle before he can gain access to the training he needs. Secondly, he submits that none of the conditions imposed by the Panel in 2008 permits the Deanery to adopt a further assessment process or to step into the shoes of the Panel and to decide whether the situation is remediable. Thirdly, the appellant underwent a very probing and extensive assessment of his skills in July 2005 as part of the GMC assessment and it is not appropriate to make any further assessment. Fourthly, the imposition of such a further assessment cannot be justified on grounds of patient safety because in 2008 the Panel which clearly had considerations of patient safety in mind decided not to suspend the appellant but only to impose conditions on his practice. In this regard it draws attention to paragraph 70 of the GMC Indicative Sanctions Guidance which states that suspension is likely to be appropriate in a case of deficient performance in which the doctor currently poses a risk of harm to patients. Fifthly, he submits that there is nothing to suggest that this examination is an appropriate entry requirement for a doctor requiring remedial training.[72]I consider that there was nothing unreasonable in the Deanery employing such an examination as a requirement of entry to the IRS. The IRS involves working directly with patients, albeit under supervision. To my mind there was every justification for the Deanery imposing such a requirement. So far as the standard of the MCQ examination is concerned, I note that the topics in the Clinical Problem Solving test are taken from areas with which a Foundation Programme Year 2 doctor could be expected to be familiar. This is a low standard, that of a second year student in medical school. I consider it entirely appropriate to require at least such a basic knowledge before permitting access to patients, albeit under supervision.[73]So far as considerations of patient safety are concerned, it does not follow from the fact that the appellant was not suspended in 2008 that it could be assumed that he did not pose a risk of harm to patients. Patient safety must remain a vital consideration in the retraining of doctors who are subject to conditions. As Professor Jackson pointed out in his letter of 15th July 2008 he is required to operate in the framework of “Good Medical Practice” and he is accountable to the Postgraduate Medical Education and Training Board (“PMETB”) to ensure that the quality assurance standards are met, the first of those being patient safety. The Deanery’s letters of 18th June 2008 and 15th July 2008 make clear that the MCQ examination is intended to establish whether a doctor’s knowledge and skills fall within safe parameters of patient safety in the context of supervised practice within the scheme.[74]Furthermore, I note from Dr. Lewis’s letter of 9th January 2009 that the Northwest Deanery applied an entrance test to both its returner programme and its remedial programme. This was said by Dr. Lewis to be essential to ensure patient safety for the receiving training practice.[75]The examination is also intended as an educational needs analysis and a means of identifying whether the doctor is capable of benefiting from the IRS. It is true that in 2005 the appellant was subject to a very detailed and comprehensive performance assessment by the GMC. However, by 2008 he had been out of practice for a further period of three years. Furthermore, given the comprehensive nature of his failure in 2005, it was, to my mind, entirely appropriate to apply a test of competence as an entry requirement to the course. (2). The marking system[76]The marking system employed by the London Deanery (and, it appears, by other Deaneries) is undoubtedly very complex. Scores are expressed both as numerical scores and percentile scores which reflect the percentage of candidates who gained that score or a lower one. Raw scores are scaled to make them comparable. The use of a comparison group allows bench marking of performance against trainees at a similar level of experience. There is some evidence to support the view that the pass mark may be influenced by the availability of places on the course.[77]It may well be that in other circumstances issues could arise as to the suitability of such a marking scheme for a test intended to ascertain whether a doctor in the position of this applicant could benefit from the scheme offered and could participate in it consistently with the requirement of patient safety. However, in the present case the appellant scored a total of 381 in Situational Judgement and Clinical Problem Solving when the pass mark was 480. These scores were so far below the pass mark that such considerations become entirely academic. (3). The relevance of the result to sanction[78]In its Determination on Sanction (Day 3/2-3) the Panel noted that the MCQ examination is designed to test the knowledge of a doctor at Foundation Programme Year 2 and that the appellant’s score was in the bottom 5% of candidates. It stated that this was of grave concern to the Panel. Furthermore, it noted that he was allowed one further attempt at the examination but had so far declined to take the opportunity. The Panel stated that it understood that the examination was specifically designed to assess the basic knowledge of doctors in a similar non-practising situation to the appellant. It considered that it should not prove an unreasonable test for a doctor of his long experience.[79]Mr. Sutton criticises the finding that the test was specifically designed to assess the basic knowledge of doctors in a similar non-practising situation to the appellant. He submits that it was devised to test the knowledge of returners to the profession or junior doctors seeking induction into GP training as a continuation of their vocational training. However, for the reasons set out above, I consider that given the appellant’s previous experience and the period of time he had been out of practice he was in a comparable non-practising situation.[80]Mr. Sutton submits that there was no evidence before the Panel to support a conclusion that the appellant’s examination mark was inconsistent with the assessment of his training needs produced by the GMC’s performance assessment. Furthermore he submits that given the lack of clarity surrounding the marking scheme, the Panel was not in a position to draw any conclusions about his performance or to treat his examination results as a matter which rendered the continuation of conditions inappropriate. The fact remains, however, that the appellant failed the examination very badly. Whether or not that result was consistent with the assessment of his training needs produced by the GMC performance assessment in 2005, the Panel was clearly entitled to take the nature of the failure into account as a very significant consideration in determining the appropriate sanction. Moreover, the fact that the imposition of conditions had been considered sufficient in 2008 did not mean that that would be the only option available in 2010 in the absence of evidence that the doctor’s knowledge and skills had deteriorated. The Panel was entitled to view such a bad failure of a basic level test as a matter of grave concern.

Specialist Performance Advisor

[81]Mr. Sutton submits that the Panel apparently founded its conclusions as to the appropriateness of the IRS on the evidence of the Specialist Advisor. He submits that the proper role of the Specialist Advisor was to guide the Panel in medical issues relating to the doctor’s performance which might arise during the hearing. He further submits that the Panel was wrong to seek the opinion evidence of the Specialist Advisor in relation to the design of the MCQ examination and the skills that it was intended to assess. He complains that the Specialist Advisor trespassed impermissibly into the area of giving evidence. Furthermore he submits that the Specialist Advisor had no appropriate qualification to speak on this topic.[82]The General Medical Council (Fitness to Practise) Rules 2004 state in relevant part:
“3(2) The Registrar may appoint … (b) a panel of specialist performance advisors for the purposes of advising a FTP Panel in relation to medical issues regarding a practitioner’s performance which may arise at a hearing before the FTP Panel.”
In selecting a Specialist Performance Advisor in relation to a particular case the Registrar is required to have regard to the specialty to which the allegation relates (Rule 3(5)(a)).[83]The precise role of the specialist performance advisor is not explained in the Rules. However it is referred to in GMC Guidance for Specialist Advisors (2009 Edition) which provides in relevant part: “The Role of specialist advisors. 9. Specialist advisors attend Fitness to Practise Panel hearings to provide advice to the Panel on the medical significance of information relating to the doctor’s health or performance before the Panel. … 10. Specialist advisors may, with the consent of the Panel Chairman, ask questions of the doctor or other witnesses. Any advice given by the specialist advisors must be given in the presence of all the parties, when invited by the Panel Chairman. 11. The specialist advisor may give advice in response to questions from the Panel or may give advice which he considers would assist the Panel. For example: … b. A specialist performance advisor might explain the nature of procedures or practice in the doctor’s speciality but not his opinion as to the adequacy of the particular doctor’s practice. 12. The specialist advisor must nota. Give advice e.g. give his or her own clinical opinion about the doctor’s health or adequacy of his or her practice.b. Express a view on whether the doctor’s fitness to practise is impaired.” (original emphasis) b. A specialist performance advisor might explain the nature of procedures or practice in the doctor’s speciality but not his opinion as to the adequacy of the particular doctor’s practice. a. Give advice e.g. give his or her own clinical opinion about the doctor’s health or adequacy of his or her practice. b. Express a view on whether the doctor’s fitness to practise is impaired.” (original emphasis)[84]In Watson v General Medical Council [2005] EWHC 1896 (Admin) Stanley Burnton J observed at 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. He cannot be cross-examined if his advice contradicts that of one of the parties.”
[85]In the present case the Panel which sat in 2010 comprised two lay members and Dr. Anderson who is an Anaesthetist. The Specialist Advisor was a specialist in general practice. There came a point during the first day of the hearing (Day 1/37-8) when the Chairman invited the members of the Panel to put questions to the Specialist Advisor in relation to the requirements of Deaneries. Dr. Anderson put a question in relation to the form and content of PDP’s which the Specialist Advisor answered. I do not understand any objection to be made in relation to that (Day 1/37B-D). The Chairman then asked the Specialist Advisor if he could throw any light on the difference between raw figures and other figures in assessments. The Specialist Advisor replied:
“I will do my best, Sir. Certainly from a GMC assessment point of view, and speaking as a team leader, there is a method of making sense of raw figures so that it is more meaningful in terms of performance of the doctor’s peers. That is why the raw data is compared to others. In the GMC environment a number of doctors of good standing are invited to take the same test. A distribution curve is then produced of poor performers, average and good, and the doctor’s results are mapped according to that. I would imagine a similar process has gone on in terms of the Deanery. But it does make it fairer to compare the doctor’s score against his peers, rather than against some theoretical pass or fail mark.”
In a supplemental answer the Specialist Advisor explained that he thought that a figure was simply the sum of the marks awarded in the two stages of the test. (Day 1/37H)[86]The Chairman then asked a further question. “THE CHAIRMAN: One of the arguments put forward in some of the correspondence from the doctor’s lawyers was that this was not a test that was appropriate for this doctor. The test, as I understand it, was conceived to apply to doctors who had been out of practice for some years. My understanding is that this doctor was out of practice for a couple of years prior to the GMC hearing which imposed the condition. So I would be interested in your judgement as to whether or not you would consider this an appropriate test for the doctor in this situation to be asked to take. SPECIALIST ADVISOR: I do consider it an appropriate test. There are two reasons, as I understand it, for doing this test. One is to ensure that the doctor can benefit from the further training that would result from passing the test. Also to ensure the minimal competency from a patient safety point of view, because some of the further training will involve supervised patient contact, but nevertheless patient contact of some description. So there is the safety aspect as well. I believe for those two reasons it would be fair for any doctor to be subjected to this test. THE CHAIRMAN: What about the argument from the defence side that he had already taken a GMC assessment? SPECIALIST ADVISOR: I think it would be a different sort of assessment. A GMC assessment would be a performance assessment. The Deanery, I am not sure it is fair to call it an assessment, but it is actually an evaluation, as I have said, of how the doctor would benefit, if at all from further training and also the safety in the context of taking that further training. (Day 1/38A-E)[87]The Chairman then invited counsel to ask questions of the Specialist Advisor. Miss Bex declined the invitation. Mr. Sutton then asked a series of questions including whether or not the GMC performance assessment would have provided a useful basis for the compilation of a PDP (Day 1/38F), whether a GMC performance assessment might be more thorough than an appraisal discussion (Day 1/38G), as to the nature of a GMC assessment (Day 1/39A) and whether the Deanery would be in a position to provide an appropriate assessment (Day 1/39B). Mr. Sutton then asked a series of questions as to whether the MCQ test provided any information as to the appellant’s educational needs, as to the method of scoring, the persons against whom the appellant would be compared and the appropriateness of the MCQ examination to assess the appellant’s capacity to benefit from remedial retraining. (Day 1/39C- 40D)[88]Mr. Sutton objects to this contribution from the Specialist Advisor on a number of grounds which will be considered in turn.[89]First, it is said that in giving these answers the Specialist Performance Advisor was acting outside the scope of his functions. These are defined in the Rules as “…advising…in relation to medical issues regarding a practitioner’s performance which may arise at a hearing before the FTP Panel.” This function is not limited to advising on medical issues in the narrow sense of medical conditions. The Specialist Performance Advisor is required to have experience of the relevant field of practice because he gives advice as to medical issues regarding performance in that particular field. The GMC Guidance in paragraph 11b formulates this in wide terms where it explains that a Specialist Performance Advisor might explain the nature of procedures or practice in the doctor’s speciality. Thus I would expect the function of the Specialist Performance Advisor to extend to giving advice on matters such as what a doctor practising in a particular field might be expected to know, how often a particular problem might arise or best practice in relation to record keeping. Similarly I do not understand there to be any objection to the advice given by the Specialist Advisor in relation to the form or content of a PDP. (Day 1/37).[90]In the same way I consider that the nature of an examination or assessment of medical knowledge or skill is a medical issue regarding a practitioner’s performance. In particular, I consider that the knowledge base required of a practitioner in the field of general practice if he is to practise safely and how that may be assessed are medical issues regarding a practitioner’s performance. I consider therefore that the giving of advice on the procedures followed by the GMC in evaluating tests of doctors in the field of general practice is within the scope of the function of the Specialist Performance Advisor.[91]However, there is an important limitation on the role of the Specialist Performance Advisor within this defined area and this gives rise to Mr. Sutton’s second criticism. The GMC Guidance expressly states that a Specialist Performance Advisor must not give his opinion as to the adequacy of the practice of the doctor who is before the Panel (paragraph 11b). Furthermore he must not give his own clinical opinion about the adequacy of that doctor’s practice or express a view on whether the doctor’s fitness to practise is impaired. (Paragraph 12).[92]The purpose of this limitation is to prevent the Specialist Advisor from expressing his opinion on the ultimate issues which the Panel has to decide. However he is able to give advice on medical issues falling outside this core area provided his advice is as to medical significance. Furthermore his advice can relate specifically to the doctor before the Panel.[93]As Stanley Burnton J observed in Watson (at paragraph 69) the line between admissible advice on medical issues and the decisions to be made by the Panel itself may be difficult to draw. In this regard I have been referred to the advice of the Privy Council in Sadler v. GMC (at paragraphs 64-5) and the decision of Hickinbottom J. in Udom v. GMC [2009] EWHC 3242 (Admin.) (at paragraphs 37-40) as well as that of Burnton J. in Watson itself. While I accept that in the present case the Special Advisor’s advice as to the suitability of the test is one of central importance, I do not consider that it is within the forbidden area. Neither the advice in relation to conversion of scores nor the advice in relation to whether the MCQ examination was a suitable gateway test relates directly to the question of the fitness to practise of the appellant or that of the appropriate sanctions. The first was a technical matter which did not relate specifically to the appellant. The second did relate specifically to the appellant but was well removed from the issue of his fitness to practise. For the same reason, it is not correct to suggest that the Panel abdicated its decision making role to the Specialist Advisor.[94]Thirdly, the appellant objects that the Specialist Advisor traversed into the area of giving evidence. The role of the Specialist Performance Advisor is to give advice in relation to medical issues regarding a practitioner’s performance. He is not there to give evidence as an expert witness. (See Richardson v. Redpath Brown & Co. Ltd. [1944] AC 62 per Viscount Simon LC at pp. 70-71, cited in Sadler v. GMC [2003] UKPC 59; [2003] 1 WLR 2259.) The Advisor is there to give technical advice and assistance. However, it is not a valid objection that the advice that he gives might otherwise be the subject of evidence.[95]The appropriate course is for the Specialist Advisor to give his advice. Thereafter, it is not appropriate for him to be cross-examined. Rather, the advice which he has given may be the subject of submissions by counsel. In the present case it is unfortunate that the Chairman departed from that course and permitted the questioning of the Specialist Advisor. However, I am satisfied that the substance of the Specialist Advisor’s answers did not extend beyond the giving of permissible advice in relation to medical issues regarding the practitioner’s performance.[96]Fourthly, Mr. Sutton objects that the Specialist Advisor lacked specialist knowledge on these particular topics. He points to the answers set out above and the qualifying words “I imagine” and “I think”. However, I consider that this is unfair criticism on the Specialist Advisor. So far as his answers in relation to the grading system were concerned he had personal experience of the GMC grading system. In answering he was careful to limit himself to what he knew of the GMC grading system. So far as his answers in relation to the suitability of the MCQ test were concerned, he is a specialist in general practice and must have been in a position to give advice as to the suitability of a test based on the standard of knowledge of a doctor at Foundation Level Year 2 as a gateway to the IRS. It is notable that elsewhere he was unwilling to go beyond his expertise. (Day 1/40 B-D).[97]I attach little significance to the fact that no objection was raised to the Specialist Advisor’s answers at the time or that Mr. Sutton also asked questions relating to the suitability of the MCQ examination. However, for the reasons given above I do not consider that the Specialist Advisor stepped beyond the permissible limits of his role.[98]Furthermore, in so far as the advice of the Specialist Advisor in relation to the marking system is concerned, it is not apparent that that had any bearing on the Determinations of the Panel.[99]Mr. Sutton submits further that the error on the part of the Panel was compounded because he was prevented from asking questions about patient safety. At Day 1/40 D-E Mr. Sutton asked the Specialist Performance Advisor whether the assessment process was driven by practical constraints to do with funding. That was clearly not an appropriate question. It related to a matter of fact. The Specialist Advisor had already explained that his knowledge was of assessment within the GMC and not within the Deanery. At Day 1/40 E-F Mr. Sutton asked whether the conditions imposed by the Panel in 2008 included safeguards devised to ensure that the appellant would be operating in a safe environment. That question goes directly to the adequacy of the conditions and was a matter for the Panel. It would not have been appropriate for the Specialist Advisor to comment on the adequacy of the conditions.

Dr. Rauniar’s evidence with regard to supervised practice

[100]In its Determination on Sanction the Panel observed that it was particularly concerned in relation to the safety of patients. It referred to the assessment by those who carried out the GMC assessment that the appellant should not continue working as a doctor until he had undergone a comprehensive period of retraining and successfully completed a further performance assessment. The Panel continued:
“You have now been out of actual practice since September 2004 and although you have kept up with routine CPD, the Panel has seen no evidence of any understanding on your part of the need to retrain in almost every aspect of your clinical practice. In your oral evidence to us, you appeared to envisage returning to virtually normal practice after three or four weeks of close supervision. The Panel therefore considers that a further period of conditional registration would indeed pose a risk to patient safety, which is the Panel’s paramount concern. The Panel has concluded that it would be insufficient to extend the period of conditionality or vary the conditions.”
[101]On behalf of the appellant Mr. Sutton submits that the reference to the appellant’s oral evidence does not fairly reflect its purport.[102]The evidence in question was in response to questions by Dr. Anderson (Day 2/21). “Q: Tell me now what would be different if you had been able to organise a trainer within your day-to-day practice because now you have got a trainer you’ve met the other criteria, you can go back to work supervised? So what is the real benefit there? A: That is a real benefit of practical things because the trainer is there. First, you sit with the trainer for at least 2-4 weeks, you know how he works, and then you are left alone to work and when you feel any difficulty, or anything, you go to the trainer and ask, “How shall I do this? What investigation should I do? This is a difficult case. Can you tell me?” So I will just follow, plus in practice they do all these learning things, seminar courses where they invite consultants, so I can attend those, plus you are related with the Deanery so you go to the Deanery courses once a week. They tell you a lot of practical things. Q: You would expect to get most of your training then from the individual doctor who you will be paying under what is being proposed to do that for you? A: Yes that is the practical training. Q: And presumably that is almost on an everyday basis? A: Yes” Q: And presumably that is almost on an everyday basis? A: Yes”

Q: And presumably that is almost on an everyday basis?

[103]Mr. Sutton draws attention to a later passage in the evidence of the appellant in which he explains that he thought that after a year and a half, if his trainer felt confident, that he could go back to his practice but under the trainer’s supervision and guidance. (Day 2/23). I accept that in the passage at Day 2/21 the appellant, when he referred to “being left alone to work” was referring to being allowed, after the two to four weeks of close supervision, to practise in the trainer’s practice under the supervision of his supervisor. This would be an arrangement on which he would be allowed to see patients alone but could raise any problems with his supervisor. The appellant was not suggesting that it would be appropriate for him to return to his own practice after two to four weeks of sitting with his trainer.[104]Nevertheless, it was precisely to such supervised practice in the trainer’s practice that the Panel referred with concern in its Determination on sanction. This is fairly described as “virtually normal practice”. The Panel was not here referring to unsupervised practice in the appellant’s own practice. Moreover, the Panel was clearly entitled to view with concern the appellant’s suggestion that it would be appropriate for him to return to such “virtually normal practice” within his supervisor’s practice after such a short period of close supervision. Here, the Panel was bound to take account of the totality of the evidence as to the appellant’s fitness to practise. This included the results of the GMC assessment, the result of the MCQ test and the fact that the appellant had not practised for some six years. The retraining of the appellant was clearly going to be very long and difficult process and the Panel was entirely justified in its conclusion that the appellant’s suggestion that he might be allowed to practise alone under supervision after 2-4 weeks of close supervision was evidence of his failure to appreciate his need to retrain in almost every aspect of clinical practice.

Imputation of dishonesty

[105]In the course of questioning Dr. Rauniar, Dr. Anderson, the medical member of the Panel, suggested that the internet based learning assessments used for CPD were susceptible to cheating. Mr. Sutton submits that this comment was wholly without justification and demonstrated a lack of proper impartiality. In the proceedings before the Panel there was no allegation of any lack of good faith on the part of the appellant. Mr. Sutton submits therefore that this observation reveals an adverse pre-disposition on the part of Dr. Anderson which foreshadowed and was reflected in the Panel’s ultimate determination that the appellant had made insufficient efforts to address his deficiencies.[106]It is important to have regard to precisely what Dr. Anderson said. The appellant had been taken by his counsel, very properly, through an account of his attempts to keep his knowledge up to date. Dr. Anderson then asked the appellant about the nature of his internet learning. In his answer the appellant referred to certain websites maintained by drugs companies. (Day 2/20). The following exchanges then took place. “Q: From that point of view, it is quite easy to cheat, is it not, because you can just go away, look it up and do it again? A: Well I do not think so. If you were doing it repeatedly, then it is cheating, but if you do it the first time then it is not cheating. You tried to remember that this was the answer before, so you do it a second time. I do not know whether it is called cheating or not, but you would try to put that answer. Q: But it is not too difficult… A: There is a possibility. I do not say that it is not, but there is a possibility.” (Day 2/20 A-B; Original emphasis)

Q: But it is not too difficult…

[107]The Panel did not make a finding of dishonesty. Furthermore, it made a finding that the appellant had kept up with routine CPD. (Day 3/3H.) However, Mr. Sutton’s submission is more fundamental. It is an allegation of bias on the part of Dr. Anderson.[108]I consider that Mr. Sutton seeks to read too much into this question by Dr. Anderson. To my mind Dr. Anderson, and indeed the appellant in responding, were both referring to the nature of the internet tests. I do not read it as suggesting that the appellant was a cheat. Accordingly I do not consider that it provides evidence of actual bias on the part of Dr. Anderson. Furthermore I do not consider that an objective and fully informed observer could reasonably consider that there was a reasonable risk of bias on the part of Dr. Anderson.[109]In any event, if any objection was to be taken to the participation of Dr. Anderson on the basis of actual or apparent bias as revealed by that question, the point should have been taken at that hearing. It is well established that if the challenge is to be made on grounds of bias that challenge must be made at the first reasonable opportunity after the party making the allegation is in possession of the relevant material which his said to support it. (See Locabail [2000] Q.B. 451.) The challenge is based solely on the question put by Dr. Anderson. However no point on bias was taken before the Panel. For the reasons given above I do not consider that there was any basis on which to do so.

Criticism of personal effort

[110]In its Determination on Sanction, the Panel made the following observations on the personal effort of the appellant: “The Panel has accepted that you experienced some difficulties beyond your control in relation to the completion of your appraisal with your Primary Care Trust and that this contributed to the delay in the preparation of the Personal Development Plan (PDP) in accordance with your conditions. Nevertheless, it is not satisfied that you have demonstrated sufficient personal effort, in terms of addressing your deficiencies. It considers that two years should have given you ample time to comply fully with the conditions imposed on your registration. The Panel has considered the documents and certificates that you have provided as evidence of your Continuing Professional Development (CPD) but has seen no evidence of how you have appropriately utilised your learning. You have demonstrated on two occasions, by way of your GMC performance assessment in 2005, and the London Deanery’s MCQ Examination in 2008, that the standard of your clinical skills and knowledge are well below that expected of a qualified medical practitioner.” (Day 3/3 B-E.)[111]On behalf of the appellant Mr. Sutton submits that this criticism of the personal effort of the appellant was unjustified and failed to give him proper credit for the steps that he had taken to progress the finalisation of his PDP and in seeking to organise his remedial training in the face of limited support or encouragement from the Deanery. However, I consider that this criticism was entirely justified and there was ample material to found such a conclusion. The Panel in 2008 had imposed a period of conditional registration for two years. The purpose of the 2010 Panel was to review the progress which had been made. The reality was that very little progress indeed had been made. The appellant had failed to begin any course of retraining. For the reasons set out earlier in this judgment I consider that this was not due to any fault on the part of the Deanery. On the contrary, it was due to the inability of the appellant to qualify for the course which was offered by the Deanery. In this regard it is significant that the appellant scored a very low mark indeed in the MCQ Examination. He had refused to retake it and had started proceedings to challenge its fairness. In addition it was admitted that he was in breach of certain conditions imposed. It is true that he had taken steps to finalise his PDP. However this was a limited achievement. It was simply a plan for remedial action. There was very little to show for the two years conditional registration. In these circumstances the Panel was clearly entitled to conclude that he had not demonstrated sufficient personal effort in terms of addressing his deficiencies.[112]Mr. Sutton criticises the reference to the appellant’s failure to utilise his CPD learning. Here Mr. Sutton submits that the Panel failed fairly to take into account the appellant’s evidence as to the difficulty of doing so when not in practice or training and failed to acknowledge and reflect the positive comments of the Specialist Medical Advisor in relation to the CPD undertaken. The Panel found that the appellant had kept up with routine CPD (Day 3/3 C-D, H.) However it was correct in its observation that it had seen no evidence as to how the appellant had appropriately utilised his learning. It may well be that his ability to do so was limited by the fact that he was not in practice or training. However, the fact that he was not in training was due solely to his inability to qualify for the training course offered by the Deanery.[113]Mr. Sutton then submits on behalf of the appellant that the finding is inconsistent with the Panel’s observations that the appellant experienced difficulties beyond his control. He submits that the Panel failed to take into account the extent to which such factors impeded his retraining and that it appears to have taken into account against the appellant the admitted breaches of conditions without properly assessing the extent to which he could properly and fairly be regarded as responsible for such breaches.[114]The Panel clearly had in mind the difficulties encountered by the appellant. In its Determination on Impairment the Panel dealt in detail with the difficulties encountered by the appellant in securing his appraisal from the PCT. (Day 2/3 C-E.) The Panel was very critical of the repeated failure of the PCT to produce a signed copy of the appraisal and the very long delay which occurred in this regard. In the same Determination the Panel was critical of the attitude of the Deanery in relation to the appointment of a mentor. It clearly disagreed with the view expressed on behalf of the Deanery that it would not be possible to appoint a mentor until a PDP had been agreed. Similarly, in its Determination on Sanction (Day 3/3 B-C) the Panel expressly accepted that the appellant had encountered some difficulties beyond his control in relation to his appraisal and that that had contributed to the delay in the preparation of his PDP. Consequently, these matters were very much in the minds of the Panel and it cannot be said that they failed to take into account a relevant consideration.[115]Furthermore, these conclusions of the Panel in relation the difficulties encountered by the appellant are not inconsistent with the Panel’s criticisms of the lack of personal effort by the appellant. These difficulties form only a part of the picture. The Panel was required to have regard to the entire picture. As indicated above, very little progress had been made in the period of two years conditional registration. The Panel’s conclusion that two years should have been ample time for compliance with the conditions was clearly correct.[116]Finally, in this regard, I would observe that in coming to its view of the degree of personal effort applied by the appellant during his period of conditional registration, the Panel was exercising its judgement in a context where it was particularly well equipped to reach a view. The court should be slow to interfere with a value judgement of this sort by a specialist tribunal. In any event, for the reasons given above I consider that its conclusion was clearly correct.

Sufficiency of conditional registration

[117]The Panel in its Determination on Sanction, as we have seen, recorded its particular concern in relation to the safety of patients and its view that it had seen no evidence of any understanding on the part of the appellant of the need to retrain in almost every aspect of his clinical practice. It considered that a further period of conditional registration would pose a risk to patient safety which was the Panel’s paramount concern. (Day 3/3E-4B.) It then referred to paragraph 70 of the Indicative Sanctions Guidance which states: “Suspension is also likely to be appropriate in a case of deficient performance in which the doctor currently poses a risk of harm to patients but where there is evidence that he/she… has the potential to be rehabilitated if prepared to undergo a rehabilitation programme. In such cases, to protect patients and the public interest, the Panel might wish to impose a period of suspension, direct a review hearing and to indicate in broad terms the type of remedial action which, if undertaken during the period of suspension, may help the Panel’s evaluation at any subsequent review hearing…” 120. The Panel then continued: “Having considered all the factors in this case, the Panel has determined to suspend your registration for a period of twelve months. The Panel considers that this period will afford you time to undertake remedial action specifically aimed at preparing you to undertake the appropriate retraining before you can return to clinical practice. The Panel would expect that in due course you will have to undergo a further GMC performance assessment (as recommended by the original assessment team) prior to returning to independent practice.” (Day 3/4 E-G.) The Panel went on to state that, shortly before the end of the period of suspension, a Fitness to Practise Panel would review the case. It stated that that Panel would be assisted by receiving evidence of reflective learning, as opposed to simple records of attendance on courses over the period of suspension, evidence that following thorough preparation he was confident to retake an MCQ examination or to undertake an equivalent alternative route to remedial training, letters from professional medical colleagues confirming that he had observed them during their practice in clinical settings and the names and addresses of professional colleagues and persons of standing to whom the GMC might apply for information as to his commitment to retraining. (Day 3/4G-5C.)[118]On behalf of the appellant Mr. Sutton submits that the Panel had no grounds for concluding that the reputation of the profession and the safety of patients could not be adequately safeguarded by the maintenance of conditional registration in line with the conclusions of the earlier Panel or the imposition of varied conditions proposed by the appellant which included detailed safeguards, consistent with the previous conditions. He submits that given the safeguards proposed there were no grounds on which the Panel could reasonably conclude that retraining could not take place consistent with the interests of patient safety.[119]The Panel approached the question of sanctions in an appropriate way. It took account of the GMC Indicative Sanctions Guidance. It directed itself correctly as to the purposes of the imposition of any sanction. It considered whether it was necessary for the protection of members of the public, in the public interest or in the doctor’s own interests to make a direction in relation to his registration. It took account of the principle of proportionality, balancing the public interest against the appellant’s own interests. Here it correctly identified the public interest as including the protection of patients, the maintenance of public confidence in the profession and declaring and upholding proper standards of conduct and behaviour. It considered the options open to it in an ascending order of severity. However, it considered that a further period of conditional registration would pose a risk to patient safety, which it identified as its paramount concern.[120]The Panel was particularly well placed to make an assessment of the risk to patient safety if conditional registration were continued. The sad fact is that the appellant had comprehensively failed the GMC Assessment and had scored very poorly indeed on the Deanery MCQ Examination. He had been out of practice for some six years. The Panel was entitled to conclude that the safeguards proposed by the appellant – in particular that any remedial training taking place outside the Deanery’s IRS could only be provided by an experienced GP trainer who had been expressly approved by the Deanery and/or the GMC and that such retraining could only take place at a practice which met the requirements of the GMC conditions – would not be consistent with the interests of patient safety.[121]It is correct to record that the GMC Indicative Sanctions Guidance states in relation to conditional registration:
“Conditions are likely to be appropriate where the concerns about the doctor’s practiced are such that a period of retraining and/or supervision is likely to be the most appropriate way of addressing them.”
(at paragraph 56) “The purpose of conditions is to enable the doctor to deal with his/her health issues and/or remedy any deficiencies in his/her practice whilst in the meantime protecting patients from harm.” (at paragraph 58) However it also states (at paragraph 57):
“Conditions might be most appropriate in cases involving the doctor’s health, performance or following a single clinical incident or where there is evidence of shortcomings in a specific area or areas of the doctor’s practice. Panels will need to be satisfied that the doctor has displayed insight into his/her problems, and that there is potential for the doctor to respond positively to remediation/retraining and to supervision of his/her work.”
In the present case the Panel concluded that it had seen no evidence of any understanding on the appellant’s part of the need to retrain in almost every aspect of his practice. Furthermore it was not satisfied that he had demonstrated sufficient personal effort to address his deficiencies. Moreover, the identified shortcomings were not in a specific area or areas of practice but were comprehensive. In the light of these findings, the Panel was clearly entitled to conclude that a further period of conditional registration would be inappropriate. By contrast, paragraph 70 of the GMC Indicative Sanctions Guidance, which was expressly referred to by the Panel in its Determination on Sanction and is set out above, indicates that suspension is likely to be appropriate in cases of deficient performance in which the doctor currently poses a risk of harm to patients.[122]Mr. Sutton asks rhetorically, in relation to the justifiability of conditional registration, what had changed since the hearing in 2008 when conditional registration was imposed. However, it is important to bear in mind that in 2010 the Panel was not dealing with the appellant for the first time. A period of conditional registration had been imposed in 2008 when the Panel might well have decided to suspend him. The ruling which is the subject of this appeal was made on a review by the Panel. It was required to take account of what progress, if any, had been made by the appellant during the period of conditional registration. The situation in 2010 was very different from that in 2008. By 2010 the appellant was two years further removed from practice and had made no real progress to remedy his deficiencies during the period of conditional registration afforded to him.[123]Mr. Sutton also submits that the Panel failed properly to consider the impact upon the appellant of a decision to impose suspension. In this context he points to the risk, of which the Panel would have been aware, that the PCT would seek to terminate the appellant’s contract. He submits that the loss of his practice contract would mean the closure of his practice (which had been maintained by a long term locum doctor), loss of livelihood and the loss of any realistic hope that the appellant could return to practice in the future. However, as Mr. Sutton very fairly accepts, the impact of a sanction on the practitioner must be a secondary consideration. (Bolton v Law Society [1994] 1 WLR 512). The Panel has a duty to protect the safety of patients and in this case it acted properly to discharge that duty.[124]The appropriateness of a sanction imposed by a professional body such as the GMC’s Fitness to Practise Panel is a matter particularly within the expertise of that body as explained by Laws LJ in Rashid v General Medical Council. This is even more so in a case such as the present where the Panel’s determination of an appropriate sanction turns upon its assessment of considerations of patient safety. In any event, for the reasons set out above, I consider that the Panel was correct in its conclusion.