Kumar v General Medical Council [2012] EWHC 2688 (Admin)

Case No CO/5848/2011

[2012] EWHC 2688 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

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

Date 10/10/2012

Before

MR JUSTICE OUSELEY

Between

ANANTHA PADMANABHA PILLAI ANIL KUMARClaimant

GENERAL MEDICAL COUNCILDefendant

(Transcript of the Handed Down Judgment of

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Mr Nicholas Peacock (instructed by Eastwoods Solicitors) for Claimant

Mr Timothy Dutton, QC (instructed by GMC Legal) for Defendant

Hearing Hearing dates: 19 th and 20 th June 2012

Judgment

MR JUSTICE OUSELEY:

[1]The Claimant is a consultant psychiatrist, whose registration was ordered to be suspended for four months by a Fitness to Practise Panel of the General Medical Council on 26 May 2011. This followed its findings that his fitness to practise was impaired by misconduct relating to evidence he gave as an expert witness for the defence in a murder trial in 2009. The trial judge had referred him to the GMC because of his concerns about Dr Kumar’s evidence. He appeals pursuant to section 40 of the Medical Act 1983. He contends that the Panel’s decision was wrong: it ought not to have found proved one of the charges, namely that he had failed to disclose that he had no previous experience of acting as an expert witness in a homicide case; and more importantly it had wrongly found that he had been reckless in a number of respects in his work as an expert. It ought not to have found that his fitness to practise was impaired, nor ought it to have imposed the sanction of suspension, let alone with the requirement for a review at the end of the period of suspension. This sanction would cause Dr Kumar to lose his appointment as a consultant psychiatrist at an NHS Foundation Trust hospital. The suspension has not taken effect pending the outcome of this appeal.

The facts in outline

[2]Andrew Day stabbed his girlfriend to death on 26 May 2008. (I see no reason in this case to apply the normal practice of anonymising the person with whom the registrant was dealing). He was arrested after telling someone at a garage shortly afterwards that she had been stabbed. His interview with the police and his instructions to his solicitors led them to believe that he might have a defence of diminished responsibility under s2 of the Homicide Act 1957, (pre-amendment in view of the date of the offence). His solicitors’ employee, Mr Bucinikas, came across Dr Kumar, and instructed him in August 2008. He used his medico-legal consultancy for this work. He prepared a report dated 24 September 2008 based on an interview with Day and on reading his interview with the police. Dr Kumar concluded that Day lacked intent to commit murder and also had a condition called Intermittent Explosive Disorder, IED. Dr Kumar produced a second report on about 22 December 2008, after a further interview with Day, in response to questions raised by his QC; this report also responded to the contrary views expressed on behalf of the Crown in a report from Dr Joseph. On 16 January 2009, Dr Kumar gave evidence at the trial in Luton. He found that a difficult experience. The multiplicity of deficiencies in his expertise, experience, preparation, diagnosis of IED, his obligations of disclosure to the court and in his understanding of the legal framework for diminished responsibility were laid bare. The jury rejected the defences of lack of intent, and diminished responsibility. There has been no appeal. After the verdict, the trial judge, HHJ John Bevan QC, summarised the defects in Dr Kumar’s work and referred him to the GMC, with a view to his undertaking training on the role of an expert in criminal trials: he thought that Dr Kumar had at times shown an embarrassing lack of professionalism. This led to Dr Kumar being charged by the GMC with misconduct.

The charges

[3]The charges took the form of a series of paragraphs dealing with the various stages of Dr Kumar’s involvement, from acceptance of instructions to the preparation and content of his two reports and his giving of evidence in Court. Much of their content was not disputed. The charges then alleged that those acts had been done recklessly, or were misleading or fell below the standard of a reasonably competent psychiatrist expert witness.

[4]The charges recite that the email from the defence solicitors dated 11 August 2008 contacting him mentioned the possible defence of diminished responsibility, and that he would be instructed to report on Day’s “mens rea” at the time of the offence. Paragraph 3 of the charges said(a) that Dr Kumar accepted the instructions, which was not at issue, and

(b) that Dr Kumar “did not disclose that you had no previous experience of acting as an expert witness in a case of homicide”. Dr Kumar contested that latter point which the Panel found proved. He appeals against that finding.

[5]Paragraph 4 was not disputed: the September report(a) made no mention of section 2 of the Homicide Act 1957,

(b) expressed the opinion that Day (i) was suffering from the medical condition IED, (ii) had no intention of harming the victim,

(c) did not explain that IED was not recognised in the International Classification of Diseases, ICD, and was a controversial diagnosis. Paragraph 5 was also not disputed: the September report made no reference to the fact that Dr Kumar had not read the prosecution witness statements, and did not acknowledge, by making clear reference to, the provisional nature of the report, in view of that omission.

[6]Paragraph 6 made the undisputed point that on 12 December 2008, Dr Kumar received the Crown’s report from Dr Joseph which did refer to the Crown’s witness statements. Paragraph 7 dealt with the Addendum report of about 22 December. The charges here were that it(a) made no mention of s2 of the 1957 Act,

(b) repeated the diagnosis of IED, (both accepted by Dr Kumar),

(c) made no mention of the fact that he had not read the witness statements, a disputed charge which the Panel found proved,

(d) stated that he did not have the CPS file when preparing it, which he accepted he said, and said was true,

(e) did not acknowledge, by making clear reference to, the provisional nature of the report in view of the omission alleged in 7(c), a charge found proved, and (f)(i) did not explain that IED was not recognised in the ICD, as he admitted it did not, and (ii) was a controversial diagnosis, which was found proved.

[7]Paragraph 8 of the charges dealt with the making of the diagnosis of IED:(a) it was admitted that Dr Kumar omitted from both reports that the diagnostic criteria for IED in the Diagnostic and Statistical Manual of Mental Disorders, DSM-1V, upon which he relied, excluded aggressive episodes caused by the direct physiological effects of a substance;

(b) it was found proved that Dr Kumar had not taken proper account of the possible role of alcohol in incidents when dealing with Day’s account. The Panel also found proved (d) that the diagnosis did not take proper account of the diagnostic criterion that the degree of aggressiveness had to be grossly out of proportion to its precipitant, and (e) that Dr Kumar had also wrongly relied on episodes of self-harm by Day.

[8]Paragraph 9 dealt with the evidence given by Dr Kumar at Court. He had stated that(a) he had prepared reports in “ four or five “ murder cases,

(b) had not seen the prosecution statements,

(d) he had not challenged Day in respect of contradictory accounts given by him, (this related to very different descriptions in the two reports of Day’s stepfather’s behaviour and attitude towards him when young),

(e) ICD 10 was not the manual of choice for listing accepted psychiatric diagnosis in the UK,

(f) he was not asked to comment on Day’s criminal responsibility, (h) that Day had IED, and (i) that a diagnosis of IED constituted an abnormality of mind for the purpose of s2 of the 1957 Act. These were admitted. The Panel also found proved paragraph 9(k)(i): that Dr Kumar had stated in Court that “serious assaultative acts” included self-harm as a diagnostic feature of IED when there was no mention of self-harm in the description of IED in DSM-1V.

[9]Paragraph 10 (a) alleged that the actions and omissions in paragraphs 3-9, except 6, were reckless. None of this was admitted but the Panel found proved as reckless: paragraphs 3, 4(b)(i) and (c), but not 4(a) or (b)(ii) or any part of 5; it found proved as reckless 7(b)(c)(e), and (f)(ii),but not 7(a)(d) or (f)(i); likewise it found proved 8(b)(d)(e) but not 8(a); 9(h) and (k)(i) were found proved as reckless but not 9(a) to (f) or (i). Those proved as reckless were found proved, under charge 10(b), as misleading; this did not mean intentionally misleading according to the GMC charging guidance. In addition, charges 4(a) and (b), 5(b), 8(a), 9(e) and (f) were found to involve misleading conduct by Dr Kumar. Charge 10(c) alleged that the various charges in paragraphs 3-9 involved Dr Kumar acting below the standard of a reasonably competent psychiatrist acting as an expert witness; all of those which involved recklessness or being misleading were found proved and, in addition, charge 7(a). Mr Dutton accepted that the 10(c) charges added nothing, if the findings of recklessness were upheld.

[10]The Panel went on to find, in the light of Dr Kumar’s admissions and its findings on the charges, that Dr Kumar was guilty of misconduct, and that by reason of that misconduct his fitness to practise was impaired. It considered other sanctions, including the imposition of conditions preventing expert witness work in the criminal cases, but concluded that the public interest in upholding the confidence of the public in the profession required his serious failings to be marked by suspension.

The legal framework for the Court’s decision

[11]S40(7) of the Medical Act 1983 as amended empowers this Court to dismiss or allow the appeal, to substitute any other direction which the FTP could have given or to remit the case for it to dispose of in accordance with directions. There may be scope for some debate about precisely how a Court should approach its task, but both parties agreed before me that what McCombe J said in Azzam v GMC

[2008] EWHC 2711

(Admin), at paragraphs 25-6, is an accurate and sufficient summary of the law for these purposes. He said: “25. In broad terms I accept the submissions of Miss Callaghan for the GMC, as to the proper approach for the court on an appeal under Section 40 of the Act, which were not disputed by Mr. Forde QC (with whom Mr De Bono appeared) for Dr Azzam. These principles are well established and appear most recently from GMC v Meadow

[2007] QB 462

, Raschid & anor v GMC

[2007] 1 WLR 1460

and Gupta v GMC

[2007] EWHC 2918 (Admin)

. The principles are:(1) The panel is concerned with the reputation and standing of the medical profession, rather than with the punishment of doctors;

(2) The judgment of the panel deserves respect as the body best qualified to judge what the profession expects of its members in matters of practice and the measures necessary to maintain the standards and reputation of the profession;

(3) The panel's judgment should be afforded particular respect concerning standards of professional practice and treatment;

(4) The court's function is not limited to review of the panel decision but it will not interfere with a decision unless persuaded that it was wrong. The court will, therefore, exercise a secondary judgment as to the application of the principles to the facts of the case before it. 26. To this list one can also add that the Panel is entitled and bound to consider aspects of the public interest that arise in any case: see e.g. R (Harry) v GMC

[2006] EWHC 2050 (Admin)

.” (1) The panel is concerned with the reputation and standing of the medical profession, rather than with the punishment of doctors; (2) The judgment of the panel deserves respect as the body best qualified to judge what the profession expects of its members in matters of practice and the measures necessary to maintain the standards and reputation of the profession; (3) The panel's judgment should be afforded particular respect concerning standards of professional practice and treatment; (4) The court's function is not limited to review of the panel decision but it will not interfere with a decision unless persuaded that it was wrong. The court will, therefore, exercise a secondary judgment as to the application of the principles to the facts of the case before it.

[12]The approach to the Panel’s decision on sanctions may require a little elaboration.

[13]Section 35C reflects the altered approach to what was once dealt with as “serious professional misconduct”. The allegation which the Panel deals with is an allegation of impairment of fitness to practice. By s35C (2) a person’s fitness to practise shall be regarded as impaired by reason only of “misconduct”, “deficient professional performance” or three other specific sets of circumstance. It is only misconduct with which this case is concerned. “Misconduct”, in the 2002 amendment in force from 2004, is the equivalent of, or at least no lesser a standard than, “serious professional misconduct” before amendment; see GMC v Meadow

[2006] EWCA Civ 1390

, para 198 and following, per Auld LJ. I regard the terms, as did counsel before me, as covering the same ground.

Ground 1: Charge 3(b)

[14]This is the only finding of fact by the Panel as to what Dr Kumar actually did, as opposed to his state of mind or the effect or standard of his actions, which is challenged in this appeal.

[15]The evidence before the FTP Panel on this charge came from Mr Bucinikas and Dr Kumar. I have set out already how Dr Kumar came to be instructed through his medico-legal consultancy. In cross-examination by Mr Peacock before the Panel, Mr Bucinikas agreed that Dr Kumar told him that he had been reporting on a possible diagnosis of IED in a homicide case for the purposes of bail. The discussion between them about his expertise had been to the effect that Dr Kumar said that he had dealt with a number of murders, one of which raised this specific IED issue. It had in fact been put to him by Mr Peacock that Dr Kumar had told him that he had been involved in 4 or 5 murder cases, which Mr Bucinikas could not deny or confirm. Mr Bucinikas did not ask for details of any other murder cases or experience, since it was the fact that he was dealing with one murder case which raised this issue which mattered to Mr Bucinikas.

[16]Dr Kumar in chief before the Panel initially said that he told Mr Bucinikas that he had done one diminished responsibility case, and a report for a homicide case at the bail stage which raised IED. His published CV made no mention of murder cases, but it is clear that he was not saying that he had actually drawn Mr Bucinikas’ attention to that fact. When asked next what his actual experience was he said that he had acted as an expert witness in one diminished responsibility case but had not given evidence in court on it. He appears to have treated the IED homicide case in relation to the bail stage of which he prepared a report as different from diminished responsibility.

[17]He accepted in chief before the Panel that he did not have the experience to undertake Day’s case, not because of a want of clinical experience, but because of a want of experience of criminal proceedings, criminal court appearances and what he called “the appropriate support”. He thought that what was required was a report dealing with both diminished responsibility and mens rea, but never thought that this was the report which would be presented in court, rather it was to help the defence team understand the issues better, and to instruct a QC. In cross-examination, he said that he had not understood Mr Bucinikas’ email as instructing him to prepare a report on diminished responsibility (D5/19E). The subsequent exchanges were understandably uncomfortable for Dr Kumar, or if not, ought to have been.

[18]Dr Kumar returned to this issue on Day 6 to explain that he had checked the report in the case which he had described as involving diminished responsibility, and had found that it was not a murder case but causing death by dangerous driving in which diminished responsibility could not have been an issue, although the driver’s mental state was; he had been asked to comment on mens rea. He had however read up about diminished responsibility for the purpose of that case. He then added that the only case which he and Mr Bucinikas had discussed was the case involving bail conditions, in which the diagnosis of IED did not relate to the bail conditions, but he had explained how IED related to the offence and to the risk of further explosive episodes. He agreed that he had never previously considered IED in the context of diminished responsibility, and he had very little experience of diminished responsibility. Nor had he ever given evidence in a murder case before. He accepted that he did not have sufficient experience to act in a murder case because he was inexperienced in criminal procedure, and in relation to diminished responsibility as a defence to murder. He thought that he could look it up if more specific instructions were given, which never came, to consider diminished responsibility in this case. By the time of his second report, he knew he was being relied on as an expert witness, but he did not want to appear. He thought that he was competent to act as an expert but was very ill-equipped to do so.

[19]On Day 6, p79, he was asked, in the terms of the charge, whether he had any previous experience of acting as an expert witness in a case of homicide. He simply answered “No”. He was then asked whether he had told Mr Bucinikas, and he replied “not as a direct statement, no.”

[20]Dr Kumar was also cross-examined about the evidence which he had given to the Crown Court about his actual experience. He said in cross-examination there that he had done reports in five murder cases of which Day was one. He accepted before the Panel that this answer would have given a clear impression of greater experience in criminal trial work than in fact he had, since this was the first occasion on which he had given oral evidence in a criminal case. He had just added up all the cases he had done relating to murder. It appears that in the few weeks that he was with the Forensic High Support Rehab Team, he had done 3-4 reports on patients who had killed. Such reports as he had done on murderers, other than Day, were done in some context other than their trials, as other evidence from him to the FTP Panel showed. It is clear from his later answers before the Panel that his criminal reports, for whatever purpose or offence, had been a very small part of his work load, as does his list of cases for which he had prepared reports. His description of them as “criminal reports” did not mean that he had given evidence in court in connection with them. The Panel concluded:

“The Panel accepted that Mr Bucinikas of Noble Solicitors had been searching for an expert psychiatrist to provide a report which would be used in a murder trial and he found your name. The Panel preferred the evidence led by Mr Davies and considered that it was more likely than not that the doctor did not disclose to Noble Solicitors that he had no experience of acting as an expert witness in a case of homicide. The Panel has heard evidence that you were interested in the case and flattered to be asked but that, in fact, you had no previous experience of dealing with this type of case.”

[21]Mr Peacock for Dr Kumar points out that the charge is not one of misleading the defence solicitors or making any positive misrepresentations as to his experience. The defence solicitors’ employee dealing with the case, Mr Bucinikas, said that he was interested in Dr Kumar’s clinical experience of this sort of condition. He also had some, albeit limited, experience of acting as an expert in cases of homicide. Mr Dutton QC for the GMC submitted that the Panel had had the advantage of seeing the witnesses, and was not wrong in its conclusions.

[22]Paragraph 3(b) actually contains two allegations, each of which have to be proved: that Dr Kumar had no previous experience of acting as an expert witness in a case of homicide, and that he did not disclose that to the defence solicitors. That is clear from paragraph 3 (a), and the Panel’s conclusions on this paragraph and on recklessness in relation to this paragraph confirm its understanding of this charge. It found that Dr Kumar had no expertise in preparing reports on the state of mind of the accused in a homicide case or of criminal procedure.

[23]I do not accept Mr Peacock’s submission. The question is not whether he would still have been instructed nor whether the charge if proven is of any real significance in the light of what Mr Bucinikas says he was interested in; those are other issues. The Panel’s conclusion is inevitable in the light of Dr Kumar’s answers to the specific questions in the terms of the charge. And his answers in that respect were correct. Dr Kumar had never given oral evidence in a homicide trial, nor had he ever prepared a report for use in a homicide trial. He had never prepared a report on diminished responsibility. He did not suggest that he had ever provided a report for use in sentencing. The preparation of a report on IED, for some use which he could not specify, in connection with a bail hearing for someone on a homicide charge could not in the context of this charge constitute experience of acting as an expert in a homicide case. It is perfectly clear that the charge contemplated disclosure of his experience in performing the sort of role he was being asked to perform and went on to perform.

[24]Dr Kumar did not tell Mr Bucinikas that this was the position. It is not relevant to the factual element of the charge, as opposed to its significance, that Mr Bucinikas did not ask for more, and could consult Dr Kumar’s published CV, which says nothing about any criminal experience, and from which its absence might or might not be inferred. Mr Bucinikas did not say how he would have reacted had he known the position. The fact is that Dr Kumar did not tell Mr Bucinikas that he had never done before what he was being asked to do. Dr Kumar said that he was not being asked to prepare a report on IED for use in Court and on which he would subsequently give evidence. The Panel must be taken, understandably, to have rejected that evidence from Dr Kumar, in its preference for the evidence of Mr Bucinikas.

[25]The Panel’s reasoning may be open to some criticism in that it implies that on the issue of what Dr Kumar disclosed to Mr Bucinikas about his previous experience as a witness in criminal cases, Mr Bucinikas gave evidence which was different from that of Dr Kumar. Undoubtedly that was the position when Dr Kumar was giving evidence in chief and initially in cross-examination but he altered his evidence later, and that later evidence did not conflict on this point with what Mr Bucinikas said. It also could be taken as suggesting that the issue was whether Dr Kumar had experience of dealing “with this type of case” which could be broader than the charge itself is. But, even if that is so, which I doubt, the conclusion on recklessness make its position clear. I would not have sent this matter back for the FTP Panel to make further findings since I am clear that on the evidence before them, charge 3 (b) was rightly found proved against Dr Kumar.

Ground 2: recklessness

[26]The framing of the charges against Dr Kumar as “reckless” comes from how the GMC understood what the Court of Appeal said in GMC v Meadow above, which concerned what was required for “misconduct” in respect of a doctor giving expert evidence. The test was derived from para 211 in the judgment of Auld LJ:

“The second starting point is that Professor Meadow did not intend to mislead the trial court and that he honestly believed in the validity of his evidence when he gave it. The FPP so found, expressly stating that there was “no evidence of calculated or wilful failure to use [his] best endeavours to provide evidence”

. As Collins J observed in paragraphs 55 and 56 of his judgment, in the absence of bad faith or recklessness, only a very rare case could justify a finding of serious professional misconduct, and that “… It … [was] is difficult to think that the giving of honest albeit mistaken evidence could save in an exceptional case properly lead to such a finding.”” “… It … [was] is difficult to think that the giving of honest albeit mistaken evidence could save in an exceptional case properly lead to such a finding.””

[27]To make sense of the citation from Collins J the words “but not reckless” have to be read in between “mistaken” and “evidence”.

[28]The meaning of “reckless” before the Panel was derived from R v G and Another

[2003] UKHL 50

para 32, Lord Bingham. He said:

“First, it is a salutary principle that conviction of serious crime should depend on proof not simply that the defendant caused (by act or omission) an injurious result to another but that his state of mind when so acting was culpable. This, after all, is the meaning of the familiar rule actus non facit reum nisi mens sit rea. The most obviously culpable state of mind is no doubt an intention to cause the injurious result, but knowing disregard of an appreciated and unacceptable risk of causing an injurious result or a deliberate closing of the mind to such risk would be readily accepted as culpable also. It is clearly blameworthy to take an obvious and significant risk of causing injury to another. But it is not clearly blameworthy to do something involving a risk of injury to another if (for reasons other than self-induced intoxication: R v Majewski [1977] AC 443) one genuinely does not perceive the risk. Such a person may fairly be accused of stupidity or lack of imagination, but neither of those failings should expose him to conviction of serious crime or the risk of punishment.”

[29]That is the test which the Panel expressly applied, emphasising that it was a subjective not objective test.

[30]The charges in paragraph 10(a) related to recklessness in relation to the acts and omissions charged or referred to in the other paragraphs. The Panel found that Dr Kumar acted recklessly in accepting the instructions and in not disclosing that he had no experience in acting as an expert witness in a homicide case; charge 3. The Panel was satisfied that Dr Kumar in fact knew what was required of an expert witness; he had read the GMC’s Guidance “Acting as an Expert Witness”, and was familiar with the Meadow decision in the Court of Appeal. This Guidance includes such obligations as to be honest about one’s experience, and not deliberately to leave out relevant information. If giving evidence as a witness, he had to make clear the limits of his knowledge or competence. He had to understand exactly what questions he was being asked to answer, and if he could not obtain sufficiently clear instructions, he should not provide an expert opinion. An opinion should be balanced, and if he had insufficient information upon which to reach a conclusion, he should qualify his opinion. What he wrote had to be accurate and not misleading. He had to take all reasonable steps to access relevant evidential material.

[31]The Panel explicitly rejected Dr Kumar’s evidence that he did not know what he had been asked to do. He knew the true limits of his expertise and experience in the area upon which his views were sought, diminished responsibility as a partial defence to a murder charge, mensrea and giving expert evidence in such a case. It is clear that the Panel rejected the evidence of Dr Kumar that he did not know what he had been asked to do, or that he had expected to provide the report for the legal team with another forensic psychiatrist giving the evidence. The Panel was satisfied that when Dr Kumar accepted instructions “you appreciated that, in doing so, there was an unacceptable risk that your expertise would be relied upon by those representing the Defendant, when preparing a defence. Despite your lack of experience in such cases and the criminal process, you accepted the instructions anyway.” The Panel is satisfied that you were reckless in doing this.” On charge 3(b) it said that “When you omitted to inform them of this, you knew that you created an unacceptable risk that they would expect that you had the necessary experience to accept instructions in a homicide case”.

[32]The Panel was satisfied that the omission of a reference to s2 of the Homicide Act was not reckless since it was due to ignorance; charge 4(a). However, on charge 4(b)(i), the expression of the opinion that Day suffered from IED, Dr Kumar was reckless. The diagnosis did not meet the criteria for that diagnosis in DSM-1V:

“In making that diagnosis, the Panel is satisfied that you knew that you were creating an unacceptable risk that those instructing you would rely on your opinion when preparing a defence of “diminished responsibility” but made the diagnosis anyway. The Panel is also satisfied that you knew that you created a further unacceptable risk that the jury might accept that opinion.”

[33]The expression of the view that Day had no intent to kill was not reckless although unprofessional; charge 4(b)(ii). He knew that IED was not a recognised condition in ICD-10 and any diagnosis was controversial; he had been reckless in not explaining in his reports that the diagnosis was controversial, because that had created the unacceptable risk of his flawed opinion being accepted.

[34]So far as charge 5(a) was concerned, his failure to say in the original report that he had not read the Prosecution witness statements before writing his report was negligent but not reckless. The Panel found that it was not reckless, although misleading, not to say that the report was provisional; charge 5(b).

[35]The charges in paragraph 7 concern the Addendum report. There had been ignorance rather than recklessness in the omission of reference to s2 of the Homicide Act, since he was in fact unaware of it, lacking experience of it; 7(a). But, 7(b), he was reckless in persisting in his diagnosis of IED, compounded this time by the fact that he had read the report of the Crown’s expert which explained why his diagnosis was flawed:

“You persisted with your diagnosis without due regard to the validity of your initial diagnosis. The Panel is satisfied that, as a consultant psychiatrist with many years experience and an expert witness, you appreciated that there was an unacceptable risk that your diagnosis might be wrong but you insisted on that diagnosis anyway.”

[36]He was reckless, 7(c), in not mentioning that he had not read the witness statements; the reference to not having the complete CPS file was not a substitute. By the time he received the Crown’s report he was aware of the existence of the statements and he had told the Panel that he had tried unsuccessfully to obtain them from the solicitors:

“You omitted to declare in your addendum report that you had not read the witness statements when you know that Dr Joseph had. The Panel is satisfied that you knew that, when you failed to mention that you had not read the witness statements, that you created an unacceptable risk that those seeking to rely on your opinion would consider it to be valid and believe that it had been made having regard to all of the relevant material, including the witness statements.”

[37]He could not be reckless in having said, as was true in fact, that he did not have the CPS file, charge 7(d).

[38]But he was reckless in not making clear the provisional nature of the report; charge 7(d). He knew that by not highlighting this, he created an unacceptable risk that those instructing him would assume that the report was complete, not provisional, and would then rely on its contents. This is what happened. He had a short space of time just before giving evidence in which to try to read what of the statements he could. They are clearly relevant to the question Dr Kumar was considering, since they relate to the immediate events surrounding the murder and Day’s behaviour in its aftermath.

[39]Although he was not reckless in not saying that IED was not recognised in the ICD, 7(f)(i), he was reckless in not saying in the addendum report, as he knew to be the case, that the diagnosis of IED was a controversial one. “The Panel is satisfied that you knew that, in doing so, you created an unacceptable risk that those relying on your report in a case of murder would be unaware that the opinion offered regarding the Defendant’s state of mind and his responsibility at the moment he stabbed his partner, was the subject of professional controversy and therefore likely to be challenged.”

[40]Paragraph 8 of the charges deals with the diagnosis of IED. Dr Kumar had been negligent but not reckless in omitting from his reports that the diagnostic criteria excluded aggressive episodes caused by the direct physiological effects of a substance; 8(a). But he had been reckless in relying on such an episode in his diagnosis, when Day had told Dr Kumar that he was very drunk, since aggressive episodes occurring in the presence of significant amounts of alcohol cannot safely be attributed to IED within the DSM-1V classification; 8(b). This failure to follow the diagnostic criteria for the disorder he was purporting to identify created the unacceptable risk that this flawed diagnosis would be relied on to persuade a jury that Day was not guilty of murder by reason of diminished responsibility.

[41]Paragraph 8(d) of the charges related to the way Dr Kumar had approached the degree of disproportion necessary between the triggering provocation and the violence of the response. There were two incidents, about one of which Dr Kumar untruthfully changed what he had put forward in his report as an accident to say that it was an act of deliberate harm by Day to his mother. The Panel accepted the evidence of Dr Fazel, the consultant psychiatrist called before the Panel on behalf of the GMC, that these incidents should not have been included in any diagnosis of IED:

“You included these examples as evidence to support you diagnosis of IED when they did not meet the criteria set out. The Panel is satisfied that you knew you had made a diagnosis that was flawed and that, when you did so, you took the unacceptable risk that your diagnosis would be accepted by those relying on it in a criminal process where the question of “diminished responsibility” was the key issue.”

[42]Dr Kumar was also reckless in his reliance on episodes of self-harm in his diagnosis of IED. It was not a criterion; the criteria were expressly listed. “The Panel is satisfied that you were reckless to form a diagnosis of IED which relies on incidents that support the diagnosis which are not included in the criteria. In relying on such episodes, you created the risk that those instructing you in a murder case would accept that diagnosis in preparing a defence to murder. There is a further unacceptable risk that your diagnosis could persuade a jury that the Defendant had “diminished responsibility.”

[43]There were only two parts of paragraph 9, which dealt with the evidence given by Dr Kumar in Court, in relation to which the Panel found him to have been reckless. First was (h), his giving evidence of the diagnosis that Day had IED, with the risks of reliance on that diagnosis not only by those who instructed Dr Kumar but also by the jury. Second was (k)(i) which related to Dr Kumar’s evidence that self-harm could be used in a diagnosis of IED. The risks were the same as for (h).

[44]Mr Peacock was critical of the way in which the GMC developed its questions and submissions on recklessness before the Panel, although by the conclusion of its hearing, all parties were agreed on what was meant by recklessness at least for the purposes of this case. That test was applied, or at least purportedly applied, by the Panel and it is agreed that that is the test against which its findings should be judged. I shall return to that test later, however, in the light of submissions made by Mr Dutton as to its practical effect.

[45]I do not think that there is anything of substance in Mr Peacock’s complaints that the GMC developed what it meant by “reckless” late in the day, and that its questioning of the witnesses was not directed to that test. It was not suggested that there was any unfairness. There is nothing in the exchanges between the Panel, the Legal Adviser and Counsel for the parties about the difference between deliberately closing one’s eyes to a risk one knows of, and a risk that was not appreciated although it ought to have been, which suggests lingering confusion rather than a determination to understand and apply the law correctly. The real question is whether the conclusions of the Panel are wrong, which could be shown if it misdirected itself on the test or went wrong in its application to the facts it found. As Mr Peacock said, the question of whether the conclusions on recklessness are wrong is a matter on which, since the findings are largely inferences from facts found, this Court is well placed to see if the conclusions are wrong.

[46]Mr Peacock next submitted that the Panel had failed to consider the context in which Dr Kumar prepared his reports and gave evidence. This was important in the light of what Auld LJ had said in Meadow.

[47]Auld LJ, in paragraphs 200-210, explained how a Panel should consider misconduct alleged against a doctor in respect of expert evidence given at a trial. It can be misconduct for a doctor to speak outside his expertise while acting as an expert, but that depends on the circumstances, and notably his intention, knowledge, or understanding while doing so, how it happened, and with what possible or foreseeable effects and with what warnings he may have given. Questions of relevance and admissibility may also be involved, and issues may arise on the borderline of a doctor’s expertise on which evidence may be sought. A Panel should be aware that, although a doctor giving evidence as an expert has an overriding duty to the Court and is bound by the generally accepted standards of his profession and its ethical codes, the hurly–burly of the trial process may not fit with it them readily, and conflict may not quickly and accurately be discernible by the doctor.

[48]At paragraph 205, Auld LJ said:

“Where the conduct of an expert alleged to amount to a professional offence under scrutiny by his professional disciplinary body arises out of evidence he has given to a court or other tribunal, it is, therefore, important that the body should fully understand, and assess his conduct in the forensic context in which it arose. Of great importance are the circumstances in which he came to give the evidence, the way in which he gave it, and the potential effect, if any, it had on the proceedings and their outcome. If the disciplinary body lacks information to enable it properly to assess the expert’s conduct in that forensic context, or fails properly to take it into account, a court reviewing its determination, is likely to bring important insights of its own to the matter. Not least among those should be an appreciation of the isolation of an expert witness, however seasoned in that role, in the alien confines of the witness box in an adversarial context over which the judge and lawyers hold sway.”

[49]In a criminal trial, the lawyers and judge should identify what is admissible or not, and it is for the legal representatives to confine an expert to those matters which fall within his expertise. Cross-examination should not lure an expert beyond his expertise, and the judge should keep the expert within his limits. The expert should however know his limits, and be alert to them notwithstanding that in the trial process that was not always easy.

[50]Mr Peacock relied on those passages, contending that the Panel had ignored as relevant contextual factors: the absence of need for a medical expert to be expert in criminal procedure and it was his medical experience and expertise which mattered, the poverty of the letter of instruction on which Dr Kumar acted, the failure of the solicitors to send the witness statements although asked to do so, the fact that the lawyers instructed on behalf of the defence in the case thought that the reports were fit for service, and Mr Bucinikas had described the first one as excellent. The trial performed its task and found out the weaknesses in Dr Kumar’s evidence.

[51]The Panel did not find that Dr Kumar needed to be an expert in criminal procedure, but his experience in giving expert evidence in cases of homicide is of obvious relevance to his conduct, as the GMC guidance shows. The Panel concluded that he was aware of the risks that his lack of expertise and his non-disclosure of it created. The Panel did not find that the letter of instruction was inadequate; it clearly was adequate and Dr Kumar’s unhappy evasiveness about what he thought he was being asked to do, which the transcripts reveal quite clearly, must have contributed to the rejection of his evidence about it. The absence of the witness statements was an issue at some stage between Dr Kumar and the solicitor. The Panel makes no clear finding on that point but appears to have accepted or assumed that he had asked for them and had not received them. Its criticism was of how Dr Kumar reacted to their absence and dealt with that in his reports, and in his willingness to give evidence in the light of the GMC Guidance. There was no indication that the reports were provisional even after the Crown’s expert’s report had alerted him to the existence of the statements; his mentioning that he had not had the CPS file was far too oblique, even misleading, a way of making the point. The fact that the defence lawyers used the reports, presumably regarding them as fit for use or better, serves to illustrate the risks which Dr Kumar caused them to run rather than providing context to refute or qualify them: Dr Kumar would have been expected to know what was required for and what was irrelevant to a diagnosis of IED, pointing out that questions of self-harm were irrelevant to the issue. He would have been expected to alert them to its controversial nature, to have had knowledge of how diminished responsibility operated as a defence, and to have drawn their attention clearly to the fact that he lacked relevant experience and important information. The fact that the deficiencies in Dr Kumar’s inexperience, lack of expertise and incompetence were exposed to a degree but not fully explored, and that Day was convicted, both serve to highlight the risk which Dr Kumar created: the defence was not withdrawn and was left to the jury, with the risk that Day would be wrongly convicted of manslaughter only. Till the last, Dr Kumar did not say that it could not be supported on his evidence. True, the Panel does not refer to these factors in the way for which Mr Peacock contends, but they were right not to accept that approach.

[52]Moreover, in reality the contextual points discussed by Auld LJ in Meadow do not bear on the gravamen of the case against Dr Kumar at all. He was not lured beyond his purported expertise by his own side or in cross-examination, the latter being designed instead to show how limited his expertise was. Rather he lacked the basic expertise to do the task upon which, on the facts found, he had knowingly embarked. His evidence was not flawed by reason of the pressure of events at the trial, or the atmosphere, or the awkwardness of the questions. It was flawed because he did not acquire relevant information which he knew existed, failed to qualify his report accordingly, did not state that IED was a controversial diagnosis, and misapplied it in a number of serious respects, all on his own in whatever peace and quiet he chose to prepare his reports. He was not charged with any matter to which the isolation of a witness or the hurly-burly nature of the trial could be relevant. I accept that on a number of occasions afterwards Dr Kumar referred to the trial atmosphere as being intimidating and hostile, and that his answers were on occasions flawed or delivered without the fluency he would have wished. But the charge of recklessness does not relate to matters of that kind, nor do any of the factual charges. They are more fundamental than that.

[53]Mr Peacock submitted then that there were a number of specific errors in the Panel’s conclusions on recklessness. He contended that its findings of recklessness on both parts of charge 3, concerning the nature and disclosure of Dr Kumar’s experience to Mr Bucinikas were inconsistent with the test of recklessness which it was applying. I disagree. He knew his limitations; he knew, on the factual findings made by the Panel, that his report would be relied on by those preparing the defence, or at least that there was a high degree of risk that they would, thereby risking the proper conduct of the defence. But nonetheless, he went ahead, accepted instructions, and did so without telling them that he had no experience of acting as a witness in a homicide case. That warrants the findings of recklessness on both parts of charge 3.

[54]There is no inconsistency with the finding that he was not reckless in telling the Crown Court that he had done reports in four or five murder cases; indeed the Panel took the view that what he said to the Court was factually correct, rather than misleading. The reality is that the Panel’s conclusions on the two issues are explicable on the basis that charge 3 is dealing with the reality of and disclosure about his specific experience in the task for which he had accepted instructions. The answer in the Crown Court related to his more general experience of psychiatric work in relation to murderers. That said, the finding in relation to what he said in the Crown Court is arguably very generous in view of his obligation to tell the whole truth and his answers about that to the Panel. If there is inconsistency, it is not one which warrants holding that it is the conclusion on charge 3 which is in error.

[55]The finding of recklessness in not stating that the diagnosis was controversial is said by Mr Peacock to “risk undermining the importance of DSM-1V”. But that misunderstands the Panel’s findings which distinguish between the use of DSM-1V and Dr Kumar’s failure to highlight that it was a controversial diagnosis. It is not a basis upon which the Panel can be said to have gone wrong either. There is obviously no inconsistency, as submitted by Mr Peacock, between the finding that Dr Kumar was reckless in not saying in his second report that he had not seen the Crown witness statements, and the finding that he was not reckless in telling the Crown Court that he had not seen them.

[56]Mr Peacock submitted that the findings of reckless were more generally flawed since the Panel found in reality no more than that Dr Kumar had been incompetent or negligent, even if to a serious or gross degree. That is simply wrong. I have considered whether the facts found and the evidence warrant the findings of recklessness or whether they are wrong. They are not wrong. They are wholly justified.

[57]Accordingly, I reject the Appellant’s submission on the findings as to recklessness.

[58]There is however a point raised by Mr Dutton which warrants comment. It is clear, from Meadow paragraphs 201(Auld LJ) and 279 (Thorpe LJ), that the Court of Appeal was not departing from the analysis of “serious professional misconduct” in paragraph 28 of Preiss v General Dental Council

[2001] 1 WLR 1926

“It is settled that serious professional misconduct does not require moral turpitude. Gross professional negligence can fall within it. Something more is required than a degree of negligence enough to give rise to civil liability but not calling for the opprobrium that inevitably attaches to the disciplinary offence.”

[59]First, the comment of the Court of Appeal in Meadow to the effect that rarely, absent bad faith or recklessness, will the giving of honest albeit mistaken expert evidence amount to misconduct, does not mean that misconduct can only arise in cases where recklessness or bad faith are proven. The overriding test remains that in Preiss. Second, the actual giving of evidence in court, oral or written, or the preparation and content of a report for use in court, may be of such a nature or degree of incompetence or negligence, that it amounts to misconduct without bad faith or recklessness, as the Court of Appeal itself recognises. There may be circumstances surrounding the acceptance of instructions, the making of a diagnosis, or the content of an expert report for use in preparing a case in which it is clear that, even if recklessness or bad faith is not proved, misconduct can be charged because of the degree and nature of any negligence and the risks created by it. A person, honestly and without recklessness, may fail to appreciate his limitations or other failings, and the serious consequences which his actions could create, even where he obviously ought to have been aware of them. An instance could be the acceptance of instructions and preparation of a report by someone whose failings were such that he was unaware of his serious limitations as an expert. It is not incumbent on the FTP Panel to assess whether a case is a rare one or not, or only to find misconduct proven on a few occasions out of those in which such a finding is warranted. Rather the concept of rarity here reflects the degree to which a medical practitioner must fall short of the standards expected before his acts amount to misconduct in those circumstances. This is because of the awareness of the Court of the context in which such reports are prepared and evidence is given; but the more remote the failings from actual evidence in court, the less important are those factors.

Misconduct and impairment of fitness to practise

[60]This was the next stage in the process. The Panel had to consider whether the facts found amounted to misconduct. If so it then had to consider whether Dr Kumar’s fitness to practise was impaired.

[61]The fact that misconduct had been found did not of itself mean that Dr Kumar’s fitness to practise was impaired. Unless his fitness to practise was impaired, no sanction could be imposed. His fitness to practise had to be judged as at the time when the Panel was considering the issue, looking to the future, rather than as at the time of the failings which they had found. The purpose of a finding of impairment was not to lead to punishment for the registrant but to protect the public from current failings. Past conduct is of course relevant to the judgment as to current failings, if any. It is relevant to the judgment as to impairment whether the failings are or have been remedied, or are easily remediable, or are unlikely to be repeated. Evidence of steps taken by the registrant after the misconduct, and of his current skills is relevant.

[62]Mr Peacock had submitted to the Panel that it should not find Dr Kumar’s acts amounted to misconduct. This was the first serious criminal case in which Dr Kumar had been involved; he repeated the contextual factors which I have already set out when dealing with recklessness. He had been interrupted by the judge when giving evidence. He had been no more than incompetent and inexperienced. The GMC submitted that the findings of recklessness were the most serious, although the Panel had also found that Dr Kumar had been misleading on a number of occasions, a charge which did not require any finding that he was intentionally misleading, and had also found that his actions had fallen below the standard of a reasonably competent psychiatrist acting as an expert witness.

[63]Mr Peacock submitted that fitness to practise was not impaired since Dr Kumar would now confine his practice as an expert witness to family cases where he had significant experience; he had also undertaken courses to address his deficiencies as an expert witness, and his qualities were supported by testimonial evidence from professional colleagues, both clinically and as an expert witness in family courts.

[64]The Panel confirmed its primary duty to consider the public interest, which included protecting patients, maintaining public confidence in the profession, and declaring and upholding proper standards of conduct and behaviour. The Panel reminded itself of the Ikarian Reefer principles.

[65]I regard it as worth noting the significant part of the findings as to misconduct before turning to impairment, although that is the finding to which Mr Peacock’s submissions to me were addressed. “Bearing those principles in mind, those instructing you would expect an unbiased opinion in an area within which you have expertise. Even if there were shortcomings with the instructions you were given, you were nevertheless prepared to accept a criminal case at the highest end of the criminal spectrum when you had no expertise either in preparing reports on the state of mind of the accused in a homicide case or of criminal procedures. It would be expected that you should not omit in your considerations in preparation of such a report material facts that could detract from your expert opinion. In this case you did not have all the material facts because you did not have the prosecution witness statements. Yet you formed an opinion and failed to inform those relying on it that your opinion has been formed without that material. In addition, you included in your diagnosis criteria that did not fit with the accepted professional diagnosis of IED. Indeed, some were specifically excluded. Your diagnosis was controversial and the basis of this controversial diagnosis was in itself flawed because the diagnostic criteria had not been met. The central issue in the criminal trial was the state of mind of the accused and whether he had the necessary criminal intent for murder or not. You advanced an opinion that was outwith your area of expertise and, despite the criteria for a controversial diagnosis not being met, you did not pause to consider, even in the face of the criticisms raised by Dr Joseph who apparently did have the necessary expertise, that your opinion might be wrong and if relied upon and accepted in a criminal process could have very serious consequences. The Panel is of the view that you became an advocate for the defence of “diminished responsibility” rather than an independent expert dealing with the limited information you had critically and objectively for the assistance of the court. The Panel is satisfied that this was not a case where you simply had a bad day in Court but a course of conduct you embarked on when you accepted the instructions from Noble solicitors, right up to your being called to give evidence. You recklessly set aside the norms of your professional obligations and your primary obligation to assist the Court, in this case the Jury, in determining the state of mind of a person charged with murder. In these particular circumstances, the Panel is satisfied that your actions would be considered deplorable and bring the medical profession into disrepute and amount to misconduct.”

[66]I see no support in this for Mr Peacock’s submission that the charges in 10(b) and (c) were not “material averments”.

[67]The Panel’s conclusions on impairment referred to the importance of the forensic context in which an expert witness gives evidence in reaching this judgment, and the relevance of the remediability of the failings. It also referred to Yeong v GMC

[2009] EWHC 1923

(Admin), saying that in particularly serious cases of misconduct, remediability may be of less significance because of the need to maintain public confidence in the medical profession and to declare and uphold proper standards of conduct and behaviour. The correctness of this case became a matter of controversy before me.

[68]The Panel said that it had:

“… carefully considered your evidence regarding courses you have attended since these events. It has taken account of the material before it that you are a psychiatrist who is both clinically competent and well-regarded in the area of family law. Mr Peacock submitted that you had no intention of undertaking similar work in the future because of your experience of this homicide case. The Panel also took account of the fact that, prior to these events, there is no suggestion that your conduct was anything but exemplary. The Panel considered the matter of your conduct in the forensic context in which it arose. You gave evidence in a murder case where the central issue was the mental state of a person accused of murder and whether that person had sufficient “mens rea” for murder. You were prepared to provide an opinion on that without the necessary expertise, without the necessary material, without proper regard to the criteria for a diagnosis of IED, and without questioning your own opinion when challenged by someone with that expertise. In addition, at no time did you inform those instructing you that this was an area which fell outside your expertise. These were the circumstances in which you came to give evidence. The Panel accepts that, during the trial, your evidence would be open to cross-examination from counsel and that you were asked a number of questions by the judge. It accepts that you had a difficult time in the witness box. It accepts that there was other expert evidence available for the jury to consider. It accepts that the jury apparently did not rely on your evidence. Nevertheless, having regard to all the circumstances of this case, looking forward, your actions, from the point at which you accepted instructions onwards, were so outstandingly bad that the Panel is satisfied that your fitness to practise is impaired.”

[69]Sales J held in Yeong, a case involving a sexually improper relationship between a doctor and patient, that the Panel was entitled to have regard to the public interest in maintaining public confidence in the medical profession generally and in the individual practitioner, when determining whether the particular misconduct currently impaired his fitness to practise. In the circumstances of that case, Sales J, in paragraph 50, said that:

“… his fitness to practise may be impaired if the public is left with the impression that no steps have been taken by the GMC to bring forcibly to his attention the profound unacceptability of his behaviour and the importance of the rule he has violated. The public may then, as a result of his misconduct and the absence of any regulatory action taken in respect of it, not have the confidence in engaging with him which is the necessary foundation of the doctor/patient relationship. The public’s confidence in engaging with him and with other medical practitioners may be undermined if there is a sense that such misconduct may be engaged in with impunity. Secondly, where a FTPP considers that fitness to practise is impaired for such reasons, and that a firm declaration of professional standards so as to promote public confidence in that medical practitioner and the profession generally is required, the efforts made by the practitioner to address his problems and to reduce the risk of recurrence of such misconduct in the future may be of far less significance than in other cases, such as those involving clinical errors or incompetence. In the former type of case, the fact that the medial practitioner in question has taken remedial action in relation to his own attitudes and behaviour will not meet the basis of justification on which the FTPP considers that a finding of impairment of fitness to practise should be made.”

[70]This was applied by Cox J in Council for Healthcare Regulatory Excellence v Nursing and Midwifery Council and Grant

[2011] EWHC 927 (Admin)

[71]Mr Peacock submitted that Yeong elided the question of impairment with the question of sanction: a practitioner’s fitness was impaired where he merited sanction. These were however two separate and sequential questions.

[72]The Panel’s reasoning is based on its view, with which I entirely agree, that it was dealing with an “outstandingly bad” case of misconduct. It does not express a view on whether Dr Kumar’s failings were remediable by his not giving evidence in the future in criminal cases, and by taking courses on giving evidence as an expert in other cases. If what Sales J said in Yeong is correct as a matter of approach, the Panel’s conclusions are unassailable and obviously not wrong.

[73]I think that Sales J is right there are cases in which remediability or the fact that the particular error is unlikely to be repeated cannot mean that fitness to practise is unimpaired. The need to uphold public confidence in the profession, and declaring and upholding standards of behaviour, may mean that a doctor’s fitness is impaired by reason of certain acts of misconduct of themselves: the public simply would not have confidence in him or in the profession’s standards if the Panel regarded that sort of conduct as leaving fitness unimpaired. Such a finding is necessary to re-affirm to the public and practitioners the standards of conduct expected of them. If that approach is right, this is just such a case. The criminal justice system must have confidence in the expertise and qualities of those members of the medical profession who give expert evidence in court. And on that basis, the weight given to the Panel’s conclusion on his impairment is in any event entitled to considerable respect.

[74]But even if its approach were not right, the Panel should still have found his fitness to practise impaired, notwithstanding his intention not to act as an expert witness in criminal cases again, and the remedial courses he had undertaken. (Indeed before me, he said that he would not undertake any expert witness work in the future in whatever sphere; in reality that part of his practice had collapsed in the light of this case.) On the Panel’s findings of fact, Dr Kumar’s diagnosis of IED contained a number of serious faults: criteria were ignored or misunderstood, his judgment on what constituted a disproportionate reaction was gravely amiss; he failed to recognise or note the controversial nature of such a diagnosis. He failed to question Day’s two different accounts of his relationship with his step father, or even to comment on the potential relevance of two such differing accounts. He did not qualify either report, though later saying that they were provisional, and was less than clear about the importance of the material he knew existed but had not seen. And this case involved a murder. These are very serious deficiencies, and errors of judgment, in whatever context he makes a diagnosis or a report on a person, let alone on a person involved in serious crime. He also had a clear tendency to blame others for some of his own failings: the solicitor, and the questions and atmosphere in court. He was clearly less than wholly truthful to the Panel in his excuses for his misconduct.

[75]I reject the contention that Dr Kumar was wrongly found to have impaired fitness to practise.

Sanction

[76]The GMC submitted to the Panel that Dr Kumar’s registration should be suspended. Mr Peacock submitted to it that a period of suspension would in reality have the effect of terminating his consultancy. Conditions could prevent involvement in medico-legal work in criminal cases, and this was reinforced by an undertaking, but to prevent all such work would be disproportionate.

[77]The Panel agreed that the purpose of sanction was not to punish the practitioner, but to protect the public; the sanction had to be proportionate. It rejected undertakings as inappropriate. Dr Kumar had failed to demonstrate insight into the circumstances he had brought upon himself. It could not leave the matter by taking no further action. Conditions were insufficient:

“It is the opinion of this Panel that you have consistently maintained that the problems created were not of your making. The Panel has found your conduct in a number of different and important areas over a period of time to be reckless. It does not consider that suitable conditions could be formulated which would be sufficient or appropriate to address the gravity of the issues in this case.”

[78]The GMC’s Indicative Sanctions Guidance stated that suspension had a deterrent effect and could send a message as to what was behaviour unbefitting a medical practitioner. It would be appropriate where misconduct was sufficiently serious that action was required to protect patients and to maintain public confidence in the profession. The Panel also cited the words of Lord Bingham in Bolton v Law Society [1994] IWLR 512 to the effect that the reputation of the profession was more important than the fortunes of an individual member.

[79]The Panel concluded:

“The Panel heard the evidence you gave at these proceedings and considers that you have not demonstrated any insight into why you held yourself out as an expert in this area. This resulted in the situation in which you now find yourself and which brought you to the attention of the GMC. The Panel is of the view that you have shown little remorse. In your own evidence, you said that you were flattered to be asked, you had little experience in the area and you appeared to blame lack of administrative support as part of the problem. “The Panel is aware that you have attended courses relevant to the skills required in respect of acting as an expert witness, indeed you attended such a course only nine days prior to the start of the criminal trial in which you were due to appear. It is the Panel’s opinion that you appear to have learned little from this training.”

[80]Dr Kumar had also ignored the principles in the GMC guidance for expert witnesses which Dr Kumar said he had read. I note that this thinking is also relevant to the issue of impairment.

[81]Finally, the Panel said:

“In all the serious circumstances of this case, the Panel has determined that it is necessary to send a signal to you, to the medical profession and to the public that such misconduct is unacceptable and will not be tolerated. The Panel has therefore determined to suspend your registration for a period of four months. It believes this to be both appropriate and proportionate. In weighing all of these matters, the Panel took account of the potential consequences for you in imposing this sanction. In deciding on a period of four months, the Panel considers that this will give you the time and opportunity to reflect on your behaviour, to gain an insight into the reasons why you allowed these circumstances to arise and to re-visit Good Medical Practice and the GMC’s guidance on Acting as an Expert Witness to ensure that your conduct in future will be governed by them.”

[82]Mr Peacock submitted that suspension was disproportionate since it would lead to the loss of Dr Kumar’s appointment as a consultant psychiatrist. Mr Dutton disputed that that would follow but contended that the Panel had accepted Mr Peacock’s submission. I accept that the Panel approached the issue of proportionality on that basis. They do not say so clearly, but Mr Peacock’s contention was not disputed before them; they do not suggest that they rejected it. Their references to the impact on the individual would make very little sense if they were referring to a period of 4 months’ suspension which left him in place.

[83]The Panel’s conclusion on sanction is entitled to considerable respect. It does not seem to me that a lesser sanction, such as conditions is appropriate. That would not be adequate for this case where the most important part of the sanction is the message it must send to the profession and the public about what are proper standards and how they will be upheld, so as to maintain public confidence in the medical profession.

[84]Mr Peacock suggested that the Court was as well able, if not better placed, to assess what the public interest required. In this particular instance, there may be something in that since Dr Kumar’s misconduct arose in a criminal trial in which the defendant relied on his reports, and they were put before the jury as part of his defence. This was a very deficient report; Dr Kumar’s failings were many, serious and dangerous. A defendant in a murder trial relied on him; the jury might have relied on him; the public and the victim’s family could have found a man convicted only of the lesser offence of manslaughter with all that that would entail for sentencing, when he was in truth guilty of murder and should be sentenced as such. It is vital to uphold the confidence of the criminal justice system, indeed of any area of the justice system, that medical witnesses will have the requisite expertise and provide balanced and accurate expert reports. The sanction is in reality the least which could have been imposed with that end in mind. That point was made by the Panel. But I emphasise it.

[85]The requirement for a review after the expiry of the four months suspension is justified. The GMC Indicative Sanctions Guidance says that a review can be appropriate to ensure that the doctor has fully appreciated the gravity of the offence, something which the Panel was clearly concerned about in this case. There is an obvious justification for Dr Kumar showing how he has gained insight into his misconduct, has undertaken further study and has learned something from his serious departures from what is expected of an expert witness. He only has himself to blame, and he has to learn that too.

[86]Far from the Panel’s judgment being wrong, it could also be justified on the further basis that Dr Kumar may well be producing reports on those involved in serious crime, even in a family context, whether or not as an expert witness, and on others whose diagnosis may involve controversial thinking. The deficiencies in the report itself went beyond failings that only arose because it was a report for a criminal trial, but which would have left it fit for use for some other purpose. It would have been a seriously deficient diagnostic report for whatever purpose it was to be put.

Conclusion

[87]This appeal is dismissed.