Ashton v The General Medical Council [2013] EWHC 943 (Admin)

Case No CO/13492/2012[2013] EWHC 943 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue The Rolls Building, 7 Rolls Building, Fetter LaneDate 19/04/2013
London
EC4A 1NL
Before
THE HONOURABLE MR JUSTICE STUART-SMITH
Between
DR JONATHAN RICHARD ASHTONAppellantTHE GENERAL MEDICAL COUNCILRespondent
Clodagh Bradley (instructed by DAC Beachcroft LLP) for AppellantIvan Hare (instructed by GMC Legal) for RespondentHearing Hearing dates: 18 March 2013
Judgment

Introduction

[1]The Appellant, Dr Ashton, challenges the decisions of the Fitness to Practise Panel of the GMC on 8 November 2012 that he was guilty of misconduct and that his fitness to practice was impaired and on 20 November 2012 that he should be suspended for 6 months and should be suspended with immediate effect.[2]These proceedings were issued on 14 December 2012. Until the morning of the hearing they were constituted as an appeal under s. 40 of the Medical Act 1983 [“the Act”]. The GMC’s power to impose the sanction of immediate suspension derives from s. 38(1) of the Act and must be challenged by an application for termination of the GMC’s order pursuant to s. 38(8) of the Act and not by an appeal under s. 40. On the morning of the hearing Dr Ashton issued an application under s. 38(8). The application was granted, thus giving the Court jurisdiction to deal with the real matters in issue between the parties. The reasons why no application was issued until the morning of the hearing are the subject of a separate judgment and need not be referred to further here, save to repeat the cautionary observation that it should not be assumed that the Court will grant permission for the late issuing of an application under s. 38(8) should similar circumstances be repeated.

The Applicable Principles

[3]The test to be applied by the Court in relation to both the appeal under s. 40 and the application under s. 38 is the same: the Court is required to consider the decisions of the relevant committee of the GMC and to decide if it was wrong. If it was, the Court is to substitute its own decision for that of the committee. However, the court should not interfere unless persuaded that a decision, whether in respect of a finding of misconduct or of sanction was wrong: see Silver v GMC [2003] UKPC 33 at [22-23], and Meadow v GMC [2007] QB 462 at [69] per Sir Anthony Clarke MR, [119] and [125] per Auld LJ, and [282] per Thorpe LJ.[4]When considering the issue of misconduct within the meaning of s. 35C(2)(a) of the Act, it is well established that “mere negligence” is not sufficient. What must be proved against a doctor is conduct that “would be regarded as deplorable by fellow practitioners” or would amount to an “elementary and grievous failure”: see Meadow at [200], and Preiss v GDC [2001] 1 WLR 1296 at [28]. It is also well established that a single negligent act or omission is less likely to cross the threshold of “misconduct” than multiple acts or omissions. Nevertheless, and depending on the circumstances, a single negligent act or omission, if particularly grave, could be characterised as “misconduct”: see Calhaem v GMC [2007] EWHC 2606 at [29].[5]The leading authority on the Court’s approach when considering a finding of misconduct or impairment is also Meadow. At [197], Auld LJ said:
“On an appeal from a determination by the GMC, acting formerly and in this case through the FPP, or now under the new statutory regime, whatever label is given to the section 40 test, it is plain from the authorities that the court must have in mind and give such weight as is appropriate in the circumstances to the following factors. (i) The body from whom the appeal lies is a specialist tribunal whose understanding of what the medical profession expects of its members in matters of medical practice deserve respect. (ii) The tribunal had the benefit, which the court normally does not, of hearing and seeing the witnesses on both sides. (iii) The questions of primary and secondary fact and the overall value judgment to be made by the tribunal, especially the last, are akin to jury questions to which there may reasonably be different answers. ”
[6]The principles to be adopted when the Court considers the question of sanction were considered in Fatnani and Raschid v GMC [2007] 1 WLR 1460. At [17-18] Laws LJ (with whom Chadwick LJ and Sir Peter Gibson agreed) said:
“17 The first of these strands may be gleaned from the Privy Council decision in Guptav General Medical Council [2002] 1 WLR 1691 , para 21, in the judgment of their Lordships delivered by Lord Rodger of Earlsferry: “It has frequently been observed that, where professional discipline is at stake, the relevant committee is not concerned exclusively, or even primarily, with the punishment of the practitioner concerned. Their Lordships refer, for instance, to the judgment of Sir Thomas Bingham MR in Bolton v Law Society [1994] 1 WLR 512 , 517–519 where his Lordship set out the general approach that has to be adopted. In particular he pointed out that, since the professional body is not primarily concerned with matters of punishment, considerations which would normally weigh in mitigation of punishment have less effect on the exercise of this kind of jurisdiction. And he observed that it can never be an objection to an order for suspension that the practitioner may be unable to re-establish his practice when the period has passed. That consequence may be deeply unfortunate for the individual concerned but it does not make the order for suspension wrong if it is otherwise right. Sir Thomas Bingham MR concluded, at p 519: ‘The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is a part of the price.’ Mutatis mutandis the same approach falls to be applied in considering the sanction of erasure imposed by the committee in this case.” “It has frequently been observed that, where professional discipline is at stake, the relevant committee is not concerned exclusively, or even primarily, with the punishment of the practitioner concerned. Their Lordships refer, for instance, to the judgment of Sir Thomas Bingham MR in Bolton v Law Society [1994] 1 WLR 512 , 517–519 where his Lordship set out the general approach that has to be adopted. In particular he pointed out that, since the professional body is not primarily concerned with matters of punishment, considerations which would normally weigh in mitigation of punishment have less effect on the exercise of this kind of jurisdiction. And he observed that it can never be an objection to an order for suspension that the practitioner may be unable to re-establish his practice when the period has passed. That consequence may be deeply unfortunate for the individual concerned but it does not make the order for suspension wrong if it is otherwise right. Sir Thomas Bingham MR concluded, at p 519: ‘The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is a part of the price.’ Mutatis mutandis the same approach falls to be applied in considering the sanction of erasure imposed by the committee in this case.”
[7]At [26] Laws LJ reiterated the need to give sufficient recognition “to the two principles which are especially important in this jurisdiction: the preservation of public confidence in the profession and the need in consequence to give special place to the judgment of the specialist tribunal.”[8]I will return to these principles when considering the submissions made in support of and opposition to the various heads of challenge advanced by Dr Ashton.

The Factual Background

[9]Dr Ashton is a registered medical practitioner who, at the relevant time, practised as a general practitioner. Since then he has ceased practice as a GP and, after a period practising emergency medicine in a hospital, most recently has been employed carrying out cosmetic surgical procedures. In July 2009 he had been in practice as a GP for more than 30 years without any previous complaint having been made about his conduct or competence. His registration is, however, already subject to conditions imposed on health grounds relating to the consumption of alcohol.[10]The present complaint related to Dr Ashton’s treatment of a patient who is to be referred to as Patient A. Patient A was a long standing patient of Dr Ashton’s and Dr Ashton was always familiar with his past medical history.[11]It was recorded in Patient A’s notes that in December 2008 a radiologist’s report had given the opinion:
“Soft tissue node at proximal aspect of pancreatic tail anteriorly of uncertain significance. Lymph node and ectopic pancreatic tissue should be considered. However malignancy cannot be excluded. Referral to Mr Wayman/Mr Raimes and further discussion in upper GI MDT is recommended. Copies: Mr J Wayman CIC, Mr S Raimes CIC JD 12/12/08”
Dr Ashton entered in Patient A’s notes “Patient given advice. Will be referred to surgeons as advised” although there was no further note as to whom the reference would be made.[12]Patient A was seen by another doctor, Dr Wigmore, on 23 June 2009 who recorded that:
“Tiredness symptoms had blackish motions few times; settled now no pain; no indigestion; adbo nad … fob x 3.”
[13]Dr Ashton saw Patient A again on 3 July 2009. At this stage it is sufficient to rehearse the facts relating to that consultation and Dr Ashton’s subsequent actions as determined by the Fitness to Practise Panel on 8 July 2012 which were as follows:
“You saw patient A on 3 July 2009, recording that he had low haemoglobin, no GIT symptoms and that Faecal Occult Blood test results were awaited. The results of those tests were positive and on 16 July 2009 you made a routine referral of Patient A to the gastroenterologists. The Panel accepts Dr Archard’s Dr Archard was the GMC’s expert witness and is referred to further later in this judgment. evidence that the letter of referral was good, and notes also that it included relevant information, including Dr. Wigmore’s observations, and attached a list of patient A’s current medication.”
[14]The referral letter was reviewed by a specialist on receipt. The referral was not upgraded to be urgent, as could have been done. As a result, Patient A attended for colonoscopy and gastroscopy on 18 September 2009. The investigations carried out that day showed that he had advanced disseminated adenocarcinoma of the proximal stomach with jaundice. There were extensive liver metastases; these had not been present at the time of the scan in December 2008. The carcinoma was inoperable and caused the death of Patient A shortly afterwards, on 21 October 2009. It was not suggested that the death of Patient A was causally related to Dr Ashton’s referral on 16 July 2009 being marked routine rather than urgent; nor was it established that Dr Ashton should have sent his referral before 16 July 2009. The only criticism that is relevant to the present proceedings was that, when he sent the referral on 16 July 2009, Dr Ashton should have marked it as being urgent and not as being routine.[15]As a result of a complaint by Patient A’s son, Dr Ashton came to be charged with misconduct. The charge, so far as relevant to the present appeal, was in the following terms: “That being registered under the Medical Act 1983 (as amended) 1. between 1 November 2008 and 30 April 2010, you were practising as a general medical practitioner at the Grosvenor House Surgery, Warwick Square, Carlisle (“The Surgery”) to the performers list of North Cumbria PCT; 2. on 12 December 2008 the results of a CT scan of the upper abdomen of Patient A were received which recommended a referral to Mr Wayman/Mr Raimes and further discussion in upper GI MDT; 3. … 4. you did not make a referral to the gastroenterologists until 16 July 2009 when you(a) made a routine referral of Patient A to the gastroenterologists;(b) did not make an urgent referral for Patient A to the gastroenterologists; (a) made a routine referral of Patient A to the gastroenterologists; (b) did not make an urgent referral for Patient A to the gastroenterologists; 5. … 6. …[7]your actions 4 and 5 above were(a) inadequate,(b) not in the best interests of Patient A”[16]Dr Ashton admitted [1],[ 2] and [4]. No admissions were made in respect of [7]. At the hearing, Dr Ashton made submissions about the use of the word “and” at the start of [7] submitting that its effect was that a finding against the doctor could not be made under that paragraph unless it was proved that his actions under both [4] and [5a] were found to be inadequate and not in the interests of Patient A. Those submissions were rejected by the FTPP; but at the present hearing Ms Bradley, who appeared for Dr Ashton here and for most of the proceedings below, again submitted that the use of the word “and” was conjunctive and relevant.[17]The GMC called expert evidence from Dr Archard on the standards to be expected of a general practitioner. He concluded that the standard of care afforded to Patient A by Dr Ashton was seriously below the standard to be expected of a reasonably competent General Medical Practitioner. In particular, though he accepted that the contents of Dr Ashton’s referral letter were “very good”, he gave as his opinion that the referral letter on 16 July 2009 should have been marked as being urgent and not routine. Other evidence to the panel confirmed both that the December 2008 scan had not shown the existence of the carcinoma and that the fact of the referral being treated as routine rather than urgent made no difference to the outcome for Patient A.[18]Dr Archard gave evidence about the applicability of the NICE guidelines for suspected cancer. He was on the NICE Guideline Review Panel for the guidelines in question. It was put to him in cross-examination that the guidelines did not apply and had not required an urgent referral because not all of the relevant criteria for an urgent referral were satisfied. Dr Archard agreed that Patient A did not have dyspepsia on 3 July 2009; but he pointed out that there was evidence that he was in abdominal pain which was suggestive of dyspepsia, although he had just come off antacids so that he would not be expected to have dyspepsia on that day. He also accepted that iron deficiency anaemia was not proved on 3 July 2009; but he pointed to a significant reduction in Patient A’s haemoglobin levels, making the point that medicine is not “black and white” and that if, as was the case, a patient such as Patient A had an anaemia at that age, a doctor has to assume that it is iron deficiency anaemia until proved otherwise. The relevant passages of Dr Archard’s evidence require to be read in full for the thrust of his evidence to be fully appreciated. When that is it done it becomes clear that, although he accepted that it was not possible in the case of Patient A to make a positive finding that the challenged criteria were met on 3 July 2009, it remained his view and his evidence that Dr Ashton’s failure to refer Patient A urgently fell seriously below the standard to be expected of a reasonably competent general medical practitioner.[19]Dr Ashton did not give evidence on his own behalf and did not call any evidence to contradict or qualify that given by Dr Archard.[20]On 8 July 2012 the FTPP made its determination of the facts alleged in the charge. So far as relevant, it recorded that the facts alleged under [1, 2, and 4] were admitted and found proved. It held that the allegations in [7(a) and (b)] of the charge were found proved so far as they related to the facts alleged under [4] and gave its reasons for its findings as follows: i) After recording the facts relating to Patient A’s attendance on Dr Wigmore in June 2009 and on Dr Ashton on 3 July 2009, the Panel continued:
“The Panel notes also Miss Bradley’s submission that the presenting symptoms did not fall within the NICE criteria for an urgent referral, given the absence of iron deficiency anaemia and dyspepsia. The Panel notes Dr Archard’s opinion that the referral should have been on an urgent basis, given Patient A’s presentation and history. It notes also that he was of the opinion that: “Not everything is accounted for in NICE Guidance and I would still submit to you that with a patient presenting in the way that Patient A presented to Dr Ashton, an average, reasonably competent general medical practitioner would have referred that man urgently to the gastroenterology team.;” “Not everything is accounted for in NICE Guidance and I would still submit to you that with a patient presenting in the way that Patient A presented to Dr Ashton, an average, reasonably competent general medical practitioner would have referred that man urgently to the gastroenterology team.;” ii) After then recording the December 2008 radiologist’s report as recorded in the patient’s notes, the Panel continued: “The Panel notes from the letter of referral, dated 16 July 2009, that you apparently considered that there had been an earlier referral to the GI surgeons following the radiologist’s report, and that you were aware that there had been no outcome. The Panel considers this to be a significant factor. The Panel took account of Ms Bradley’s submission that a hospital specialist could decide on and change the priority of referrals, and the evidence of Mr Wayland that routine referrals can be accorded urgent status, and vice versa. It accepts that evidence, but it does not accept that the fact that a referral can be re-prioritised by specialists absolves a referring physician from making the appropriate referral. The Panel also accepts Dr Archard’s evidence that a reasonably competent general medical practitioner would have referred Patient A urgently to the gastroenterology team. The Panel is persuaded by Dr Archard’s evidence on this issue. As Patient A’s general practitioner, you were aware of his full medical history, including the fact that there had been no outcome following the suggestion made by a radiologist that a referral should be made in order to exclude a possible malignancy. In all of the circumstances, you should have actioned an urgent referral. It finds that you should have made an urgent referral on 16 July 2009, and that your failure to do so was inadequate and not in the patients best interests.”
[21]It can therefore be seen that, although the panel recorded the fact of the inconclusive outcome of the December 2008 radiologist’s report as part of the relevant background, it concentrated upon Dr Ashton’s failure to mark the referral as urgent as its central finding. Neither the panel nor Dr Archard criticised Dr Ashton for not referring Patient A during the period from 3 to 16 July 2009, as it was reasonable to await the outcome of the faecal occult blood results.[22]The Panel then received evidence and submissions on 6 November 2012 on whether Dr Ashton’s fitness to practise should be found to be impaired by reason of his misconduct. Dr Ashton sent a letter excusing his non-attendance; but he did not provide any evidence on his own behalf in relation to the issue of his impairment; and no medical evidence was presented to the Panel on his behalf which went to the question whether there was a risk of repetition of the same or similar failings on his part. A bundle of papers was submitted which included Dr Ashton’s CV and details of training he had undergone in the fields of emergency medicine and cosmetic surgery; and an email from the manager of the clinic where he was currently carrying out cosmetic surgery was submitted which said:
“We have had no complaints about his work and have, in fact, received very positive feedback from his patients. He is a valued and popular member of our team.”
[23]In the course of that hearing, there was a private session during which Ms Bradley informed the panel of various personal matters which had been happening to Dr Ashton at and about July 2009. Those matters have been put before the Court again in the present hearing. However, before the panel, Ms Bradley had concluded that part of her submissions by saying of the matters that had been raised:
“Nevertheless, whether or not it impacted on his ability to do his job is a matter of judgment. We cannot say that on his behalf or otherwise.”
The relevance of the matters raised in private to the question of likely repetition is therefore opaque and, ultimately, was not pressed by Ms Bradley in her submissions to the Court.[24]On 8 November 2012 the Panel gave its determination on the issue of misconduct, which is the subject of the first challenge in this appeal. It accepted that the test to be applied was whether other practitioners would consider Dr Ashton’s actions to be “deplorable” or would amount to an “elementary and grievous failure” and noted the submission that this was an isolated incident in a career spanning many years. It recorded that it had considered the case law to which it had been referred and then set out its reasons at some length. For the purposes of this appeal and judgment I have read and taken into account the whole of the determination, all of which is material; but the most important passages are as follows:
“The Panel has been reminded that a finding of impairment involves two elements: first, the panel must determine whether the facts found proved in Dr Ashton’s case amount to misconduct. Secondly, if it does, the panel must decide whether his fitness to practise is impaired by reason of that misconduct. Throughout its deliberations, the Panel has borne in mind its responsibility to protect the public interest. The public interest includes, amongst other things, the protection of patients, the maintenance of public confidence in the profession, and the declaring and upholding of proper standards of conduct and behaviour. Misconduct The GMC contended that it was implicit in the wording of paragraph 4 of the allegation that there ought to have been an earlier referral before 16 July 2009. Hence, there was not a single failure to refer on 16 July 2009 but a failure seven months earlier and a continuing failure over that period. You contended that there was a single failure to refer urgently on 16 July 2009 only. The Panel rejects the GMC’s contention. It has already made its findings of fact. These were a finding that on 16 July 2009, and presented with the information that he had before him, and given his knowledge of the full medical history, that Dr Ashton should have made an urgent referral. The Panel has noted that the allegation after the GMC’s amendment, at the outset of the hearing, no longer linked paragraph 4 and paragraph 2, and as a result, it did not then allege a failure to refer in December 2008.”
The Panel then summarised the background facts and continued:
“The Panel has considered the facts found proved in the context of the case as a whole. On 16 July 2009, Patient A presented with low haemoglobin, had tested positive for faecal occult blood and had a recent history of dyspepsia. All of which, in the view of Dr Archard, the GMC’s expert, significantly suggested or evidenced that the patient might have had an upper GI cancer. The Panel has noted that Dr Ashton was aware of the results of the CT scan of the upper abdomen in December 2008, which indicated that malignancy could not be excluded and advised that referral to Mr Wayman / Mr Raimes and further discussion in the upper GI MDT was recommended. It has also noted that he understood at the July 2009 consultation that this had not been followed up. This was clear from the face of his referral letter, dated 16 July 2009. The Panel accepted the view of Dr Archard that an average, reasonably competent general medical practitioner would have referred the patient urgently to the gastroenterology team. Given the patient’s presentation, Dr Ashton’s knowledge at that date, and the expert evidence, the Panel was satisfied that an urgent referral was needed. The Panel does not accept that the failure to make an urgent referral was less serious because the hospital did not change it from a routine referral. The Panel re-iterates its earlier view that the fact the hospital can change the status of a referral does not absolve a referring physician from making the appropriate referral. The hospital specialist did not have the benefit of clinically assessing the patient in person, or have the full knowledge of his history, but was merely making a judgement on the basis of Dr Ashton’s referral letter and the list of current medication alone.”
After reminding itself of the duties of a doctor as set out in the Good Medical Practice applicable at the time of the events, it continued:
“Doctors occupy a position of privilege and trust in society and are expected to uphold proper standards of conduct. Good Medical Practice makes clear the public are entitled to place complete reliance upon doctors to make the care of their patients their first concern; to protect and promote the health of patients and the public; and to provide a good standard of practice and care. The Panel has concluded that Dr Ashton’s failure to make an urgent referral on 16 July 2009 was a very serious failing and a breach of paragraph 2 of Good Medical Practice. The clinical presentation and Dr Ashton’s knowledge of the patient’s history demanded that this patient be referred urgently. This was because what was potentially being missed was cancer, which could be life threatening. This omission fell seriously short of the standards of conduct that patients and the public are entitled to expect from a registered medical practitioner. The Panel considers that Dr Ashton’s failure to make an urgent referral would be regarded as “deplorable by fellow practitioners”
. It further considers that this failing was “elementary and grievous”. The Panel has had specific regard to this failure being a single incident in a previously long unblemished medical career. Nonetheless, it is satisfied that the omission here was sufficiently grave as to amount to serious misconduct. … Impairment The Panel went on to consider whether Dr Ashton’s fitness to practise is impaired by reason of his misconduct. It is aware that a finding of misconduct does not automatically lead to impairment. In coming to its decision, the Panel has considered, amongst other things, the issue of remediation, insight and repetition. The Panel paid particular attention to Dr Ashton’s 30 year medical career, and Miss Bradley’s submission that the risk of repetition was remote. The Panel has noted that there has been no evidence of repetition since the time of the events. It also noted that Dr Ashton has changed his field of practice, but it considered this to be of marginal significance, as it would be open to Dr Ashton, at any time, to return to general practice should he wish to do so. In any event, irrespective of his field of practice, a medical practitioner must be able to assess the clinical needs of his patient and make urgent referral decisions when required to do so. The Panel accepts that the deficiencies highlighted in Dr Ashton’s case are, in principle, remediable. However, no cogent objective evidence has been placed before this Panel, regarding any efforts Dr Ashton may have made towards remediation of his proved deficiencies. The documents submitted in relation to continuing professional development do not address this and Dr Ashton has not given evidence to the Panel. Further, whilst the Panel has noted that Dr Ashton made certain factual admissions in relation to the allegation, it has borne in mind that he has not, at any time, acknowledged that his actions were inadequate and not in the best interests of the patient. Further, no evidence of insight that the Panel has found persuasive has been put before it. In light of the above, the Panel could not be satisfied that the risk of repetition of such behaviour in the future is highly unlikely. By his failure to refer Patient A urgently Dr Ashton presented a risk to this patient, and breached a fundamental tenet of the profession, namely to protect the health of a patient and to provide a good standard of practice and care. Furthermore, the Panel was of the view that the need to uphold proper professional standards and public confidence in the profession would be undermined if a finding of impairment were not made in these particular circumstances. Accordingly, the Panel has determined that Dr Ashton’s fitness to practise is impaired by reason of his misconduct.” Misconduct

Impairment

[25]The next stage was for the Panel to consider sanction in the light of its determination on impairment. Once again, no evidence was submitted from Dr Ashton, either in person or in the form of a witness statement or otherwise. The Panel heard further submissions during which it was pointed out again that this was an isolated incident of patient complaint in a 33 year career in medicine; and it received and considered testimonials to his competence from Dr Ashton’s workplace supervisors. The testimonials related to his work in emergency medicine and cosmetic surgery. Only one expressed any concerns about Dr Ashton’s professional performance in that work, the concern relating to Dr Ashton having not moved to the treatment of more seriously ill or injured patients when working in emergency medicine.[26]The Panel determined on 20 November 2012 that the appropriate sanction was suspension for 6 months. In reaching that conclusion the panel included in its reasons the following:
“The Panel has found that Dr Ashton’s misconduct was serious and constitutes a serious departure from the standard expected of a registered medical practitioner. The Panel considers that Dr Ashton made a very serious error of judgement in not urgently referring Patient A for further investigation and in doing so he put that patient at a significant risk of harm. This failing in July 2009 needs to be viewed in the context of his knowledge of the recent clinical history of the patient. Dr Ashton also knew that no action had been taken following the radiologist’s report received some months earlier recommending a referral to gastroenterologists. The Panel notes that Dr Ashton’s registration is currently subject to conditions relating to health. Mr Clarkson submitted that if the Panel is minded to impose conditions they could run parallel with the existing conditions. This present case relates to a single serious incident of misconduct. It was a basic error. Dr Ashton is not charged with lack of competence. Dr Ashton should have known from his assessment of this patient’s condition and his history that an urgent referral was required but in the event failed to take that action. In this context the Panel cannot devise conditions which would remedy this elementary failing. In any event the Panel has received no evidence of Dr Ashton’s acceptance of his failings. He has continued to deny any fault and has only made admissions in relation to the factual paragraphs of the allegation. The Panel is therefore not satisfied that Dr Ashton has either the willingness or sufficient insight to respond positively to any conditions even if they could be devised. Further for the reasons stated it is the view of this Panel that in fact it is not possible to devise conditions which are measureable, appropriate, proportionate and workable. In addition, given the seriousness of the misconduct the Panel does not consider that the wider public interest which includes declaring and upholding proper standards of conduct and behaviour, maintaining public confidence in the profession and in the regulatory process would be properly served by the imposition of a sanction of condition. The Panel then considered whether it would be sufficient to suspend Dr Ashton’s registration. In doing so it has considered the non-exhaustive list of factors set out at paragraph 75 of ISG, which indicate when suspension might be appropriate. The Panel has already determined that Dr Ashton’s misconduct constitutes a serious breach of Good Medical Practice and that in failing to refer Patient A urgently he presented a risk to this patient, and breached a fundamental tenet of the profession. Whilst Dr Ashton has shown little insight into his actions the Panel accepts that his failings constitute a single incident of a patient complaint in a 33 year career. The Panel acknowledges that the issues in this case occurred in 2009 and there has been no evidence of a repetition of such behaviour. The Panel has considered the workplace reports completed by Dr Maimaris, who supervised Dr Ashton’s work in the Accident and Emergency Department, who stated that Dr Ashton is performing ‘adequately’ in the ‘minors’ stream of accident and emergency work. Currently Dr Ashton is working in the field of cosmetic surgery. Dr Cronin, Dr Ashton’s workplace supervisor, provided a report dated 6 October 2012, stating that Dr Ashton is a conscientious doctor who is aware of his skills and limitations within the field of cosmetic surgery. The Panel does not consider that Dr Ashton’s actions are fundamentally incompatible with him continuing to be a registered doctor. The Panel accepts, on the basis of the evidence provided, that there is no evidence of deep-seated personality or attitudinal problems. In all the circumstances of this case the Panel is therefore satisfied that a period of suspension is necessary and sufficient to indicate to Dr Ashton, the public and the profession that his behaviour is unacceptable. A period of suspension will be sufficient to protect the public, declare and uphold proper standards of conduct and behaviour and maintain public confidence in the medical profession. In considering the appropriate period of suspension, the Panel is aware that the maximum period of suspension is 12 months. The Panel has taken into account that this is a single clinical incident in a long medical career and there is no evidence of repetition since 2009. It has also taken into account the personal circumstances Dr Ashton found himself in at the material time. The Panel has therefore, in all the circumstances of this case, determined to suspend Dr Ashton’s registration for a period of six months, which it considers to be a proportionate and appropriate response and sufficient to mark the seriousness of his misconduct.”
[27]There remained the question whether an order of immediate suspension should be made. Further submissions were made on 20 November 2012 and the Panel determined that it should be. In doing so it summarised the submissions that had been made on Dr Ashton’s behalf and gave its reasons as follows:
“You submitted on Dr Ashton’s behalf, that an immediate order is not necessary. You informed the Panel that Dr Ashton’s current position is that he is practising in the field of cosmetic surgery. You submitted that the concerns in this case arise in relation to Dr Ashton’s work as a general medical practitioner and that he has no intention of returning to this field, nor would he currently be in a professional position to do so. The Panel has noted that it may impose an immediate order where it is satisfied that it is necessary for the protection of members of the public, or is in the public interest or is in the best interests of the practitioner. The Panel has noted that Dr Ashton has changed his field of practice. However it considers that, irrespective of his field of practice, a medical practitioner must be able to assess the clinical needs of his patient and make urgent referral decisions when required to do so. The Panel has already noted its concern in relation to Dr Ashton’s failure to acknowledge his error. It therefore cannot be satisfied that his conduct would not be repeated The Panel has determined that, in all the circumstances of this case, it is necessary for the protection of members of the public and in the public interest, in order to maintain public confidence in the medical profession and to declare and uphold proper standards of conduct and behaviour, to suspend Dr Ashton’s registration immediately.”

The Grounds of Challenge

[28]Dr Ashton now challenges the determinations of the FTPP made on 8 and 20 November. The stated grounds of appeal are that the Panel erred in law and was wrong:
“1. In determining that the single incident of writing a routine letter of referral when an urgent letter of referral was required was sufficient: (a) to amount to misconduct for the purposes of section 35C(2)(a) of the Medical Act 1983 (as amended); or (b) to justify a finding of impairment of fitness to practise in respect of a doctor with a 33 year medical career and no other allegations of misconduct. 2. In determining that it was necessary or proportionate to impose an order of 6 months’ suspension in all the circumstances of the findings of fact and the evidence, including the fact that if any order was necessary or proportionate (which is not admitted, given that the finding of impairment of fitness to practise is also the subject of this appeal), then conditions would have been workable and appropriate; 3. In determining that it was necessary or proportionate to impose an immediate order in all the circumstances of the findings of fact and the evidence, including the fact that the Appellant was not working at the time of the Panel’s stage 2 and stage 3 determinations, owing to his partner’s ill health.”
Ground 1(a): The finding of misconduct Submissions

Ground 1(a): The finding of misconduct

[29]Ms Bradley develops four points in challenging the finding of misconduct. i) First, she draws attention to the contents of the letter of referral and to the fact that Dr Archard accepted that they were “very good”. She submits that the Panel failed to take Dr Archard’s evidence on this point into account, there being no reference to it in the Panel’s stage 2 determination; ii) Second, she submits that Patient A’s case did not satisfy all the criteria laid down by NICE for cases requiring urgent referral because there was no complaint of dyspepsia, no evidence of chronic intestinal bleeding, no evidence of iron deficiency anaemia and no evidence of other criteria listed under [1.4.2] of the NICE guidelines. She submits that the fact that the case did not fall within the NICE guidelines requiring an urgent referral is relevant to the seriousness of the failure to make an urgent referral; iii) Third, she relies upon the fact that the referral was not treated as urgent by the specialist who received it, despite the satisfactory contents of the letter. She submits, as she submitted to the Panel, that it is relevant to the seriousness of the omission to refer urgently that a specialist also treated the case as routine; iv) Fourth, she points to the evidence available to the Panel at Stage 2 which evidenced the fact that Dr Ashton was no longer working in general practice and that evidence had been submitted that he was a competent and valued colleague in the work that he was now carrying out. As a matter of fact, in November 2012, he was not working at all because of the misfortune of his partner’s terminal ill-health.[30]In support of her submissions that the Panel erred in making a finding of misconduct, Ms Bradley refers to and relies upon past cases where findings of misconduct or its earlier equivalent – serious professional misconduct – have been held not to be established in cases of isolated instances of doctors falling below the required standards of the profession. In each case Ms Bradley submits that the conduct of the Doctor was worse than Dr Ashton’s, which in her submissions shows that Dr Ashton’s conduct could not properly be regarded as misconduct. Ms Bradley referred the Court in this regard to Rao v GMC [2002] UKPC 65; Silver v GMC [2003] UKPC 33 and Nandi v GMC [2004] EWHC 2317 (Admin).[31]More generally, Ms Bradley referred to the fact that mere negligence does not constitute “misconduct” and that the touchstone is whether the conduct in question would be regarded as “deplorable by fellow practitioners” and whether the conduct is sufficiently serious to call for the opprobrium that inevitably attaches to a disciplinary offence: see Preiss v GDC [2001] 1 WLR 1926 at [28]. These principles are not in doubt and, it should immediately be noted, are the principles to which the Panel directed itself when making its stage 2 determination. Each of the cases of Rao, Silver and Nandi is an illustration of the application of the well-established principles to the facts of the particular case. They do not establish any separate principle, but have value in providing examples of the approach adopted by the higher courts to the application of general principles to the facts of those cases.[32]In reply for the GMC, Mr Hare draws attention to the specialist nature of the FTPP and the caution that should be exercised by a Court that is being asked to interfere with findings within the specialist expertise of the Panel: see [197] of Meadow. He submits that the findings made by the Panel on misconduct were findings that were open to it and should not be disturbed by the Court.

Discussion

[33]What was found to constitute misconduct was not the quality of the contents of the letter of referral but the fact that the referral was marked routine and not urgent. Had it been the contents of the letter that had been under scrutiny, Dr Archard’s acceptance that they were “very good” would have been an answer to the charge; but, as it was, the only relevance of the contents being good was that it enables Dr Ashton to argue that, since the specialist at the hospital did not upgrade the referral to being urgent, Dr Ashton should not be held to have been guilty of misconduct for not having done so either. I return to that argument below.[34]There is no substance in the submission based upon the terms of the NICE guidelines. First, they are just that – guidelines: they are not rules and they do not provide an exhaustive catalogue of the circumstances in which an urgent referral should be made. Dr Archard’s evidence was to the effect that there are scientific limitations on what can be included in the guidelines and that they leave out the all-important part of medicine which is based upon experience and general training. He explained cogently why dyspepsia was not proved to be present on 3 July 2009 and why iron deficiency anaemia should have been presumed in the absence of proof to the contrary. These were matters that the Panel was not merely entitled but right to take into account. It was also fully entitled to accept Dr Archard’s evidence that a reasonably competent general medical practitioner should have referred Patient A to the gastroenterology team urgently, unless it was precluded from doing so by the fact that the hospital specialist had not upgraded the referral to urgent.[35]The fact that the referral was not upgraded to be urgent by the hospital specialist was addressed expressly by the Panel, which pointed out that the hospital specialist did not have the benefit of clinically assessing the patient in person and did not know the patient’s history: the specialist was merely making a judgment on the basis of Dr Ashton’s referral letter and the list of current medication alone. It was an integral part of Dr Archard’s criticism of Dr Ashton that he knew the past medical history and the contents of Patient A’s medical records. The hospital specialist did not. Not only is it virtually self-evident, but in addition the Panel had direct evidence to support it from Mr Raimes, a consultant general surgeon, that the specialist is entirely dependent on the referral letter to determine the priority of seeing a patient and that primary responsibility for determining the priority remained with the referring GP. The argument underpinning this limb of challenge is that if(a) a GP should refer urgently and(b) the contents of his referral letter are very good then(c) any hospital specialist reading the letter will appreciate that the referral should be urgent. There is no basis for this argument either in logic or in the evidence. Quite apart from anything else, the argument assumes that the hospital specialist will never fall short in his assessment of the letter. There is no basis for such an assumption and a GP cannot safely make it: that is why the Panel said that it did not accept “that the fact that a referral can be re-prioritised by specialists absolves a referring physician from making the appropriate referral.” The GP’s obligation to refer appropriately is free standing and independent of the obligations of the specialist.[36]Ms Bradley submitted that this reference to “absolution” meant that the Panel had misunderstood her submission about the involvement of the hospital specialist. She identified the submission that she had made on 6 November 2012 as encapsulating her argument: there she referred to the case of Nandi and the fact that a locum doctor had taken a more serious view of matters than Dr Nandi, and said D18/17 at G-H :
“The relevance of that is that the locum doctor took a different view and took more urgent action than Dr Nandi did and that is to be distinguished from the situation here that the hospital who received the letter of referral in July 2009 took the same action and maintained the position that this was to be dealt with on a routine basis. That is relevant to your analysis of the seriousness of the failure to write an urgent letter rather than a routine one.”
[37]Ms Bradley advanced this argument twice: first when the Panel was considering its determination of facts and later on the issue of misconduct, as is apparent from the fact that the Panel responded to it twice. When making its findings of fact the Panel included in its reasons for finding [7(a) and (b)] of the Charge proved in relation to the facts found under [4]:
“The Panel took account of Miss Bradley’s submission that a hospital specialist could decide on and change the priority of referrals, and the evidence of Mr Wayland [sic] that routine referrals can be accorded urgent status, and vice versa. It accepts that evidence, but it does not accept that the fact that a referral can be re-prioritised by specialists absolves a referring physician from making the appropriate referral”
Subsequently, when making its determination on misconduct, the Panel said:
“The Panel does not accept that the failure to make an urgent referral was less serious because the hospital did not change it from a routine referral. The Panel re-iterates its earlier view that the fact that the hospital can change the status of a referral does not absolve a referring physician from making the appropriate referral. The hospital specialist did not have the benefit of clinically assessing the patient in person, or have the full knowledge of his history, but was merely making a judgment on the basis of Dr Ashton’s referral letter and the list of current medication alone.”
[38]When these passages are read in context, it is apparent that the Panel in the first passage was addressing the correct questions and that it engaged directly in the second passage with the submission being made by Ms Bradley. In the first passage it was explaining why Dr Ashton’s conduct was inadequate and not in the best interests of Patient A and concluding, rightly, that the non-intervention by the hospital specialist at a later date did not affect the responsibility of the referring doctor to make an appropriate referral. In the second passage, the Panel started (in the first sentence set out above) by engaging directly with Ms Bradley’s submission (also set out above) that the failure of the hospital specialist to upgrade the referral was “relevant to [the Panel’s] analysis of the seriousness of the failure to write an urgent letter rather than a routine one.”: its response was that “the Panel does not accept that the failure to make an urgent referral was less serious because the hospital did not change it from a routine referral.” The reference to “absolution” must be seen in context, and the Panel’s reasons should not be construed with the same rigour as might be applicable when interpreting a statute or a detailed commercial contract. Adopting a fair and contextual reading shows that the Panel understood Ms Bradley’s submission and rejected it. In my judgment it was right to do so. What was under scrutiny was Dr Ashton’s conduct, not that of the hospital specialist. The Panel’s reasons make clear that it understood (correctly) that the circumstances in which a hospital specialist makes his judgment differ from those applying to a general practitioner making a referral. That being so the Panel was correct to concentrate on the nature of Dr Ashton’s conduct alone, and not to be deflected by reference to other non-comparable conduct or other cases decided on different facts.[39]The fourth strand of Ms Bradley’s argument adds little of substance on the question of misconduct save that it endorsed what the Panel already knew, namely that this was an isolated incident in a long career. The Panel recorded that this had been Ms Bradley’s submission at the outset of its determination on misconduct, and referred to it expressly later, saying:
“The Panel has had specific regard to this failure being a single incident in a previously long unblemished medical career. Nonetheless, it is satisfied that the omission here was sufficiently grave as to amount to serious misconduct.”
[40]It is therefore clear that the Panel had regard to the submissions being made by Ms Bradley on the issue of misconduct. It reached its conclusion having expressly applied the correct test, namely that the conduct should be “ “deplorable” and/or amount to an “elementary and grievous failure”.” It said that it had taken into account the case law to which it had been referred and expressly mentioned Nandi as being “particularly useful”. This may seem an unpromising start for Dr Ashton’s challenge; but it is necessary for the Court to look closely at the trilogy of cases upon which Ms Bradley relied and which she submits mean that the Panel was wrong to make a finding of misconduct.[41]Rao v GMC was a decision of the Privy Council, which then heard appeals from determinations of the Professional Conduct Committee of the GMC. Dr Rao was an experienced general practitioner with a good record. On 29 December 1998 he was working for the Wrexham General Out of Hours Co-operative when he took a call from the wife of Mr Colin Pritchard. The facts found by the PCC included that Mrs Pritchard told Dr Rao that her husband was a psychiatric patient and on medication, that his lips and fingers had turned blue, and that his breathing was very rapid. Dr Rao failed to find out whether there were clinical signs indicating a drug overdose, failed to ask whether this was the first time he was cyanosed, and failed to enquire whether his state of health had deteriorated. Dr Rao failed to arrange for Mr Pritchard’s breathing to be assessed medically and the PCC concluded that his advice was inadequate and inappropriate in that he failed to put himself into a position to make an accurate professional assessment of Mr Pritchard’s condition. Mr Pritchard died later that night of respiratory depression and accidental drug overdose. The PCC concluded that Dr Rao’s treatment of Mr Pritchard amounted to serious professional misconduct. In doing so, it acted on advice from its legal assessor on the nature and content of the charge of misconduct.[42]The Privy Council identified that there were two grounds of appeal. The first was that the PCC was wrong to find the appellant guilty of serious professional misconduct, and to impose such excessive and inappropriate conditions. The second was that the advice of the Legal Assessor was misleading as to what might constitute serious professional misconduct in that particular case. The Privy Council examined the first head of appeal in paragraphs [9] and [10] and stated at the start of [11] that “Their Lordships found this a difficult case to evaluate on its merits in the light of the evidence.” They then recorded that they had become increasingly concerned about the Legal Assessor’s direction, and turned to consider the second head of appeal, concluding at [15] that there had been a misdirection in the following passage:
“As it stands, taken as a whole and in context the passage complained of was ambiguous and misleading. It gives the impression that it was open to the PCC to conclude that the separate elements (as particularised in the charge, if proved) could each on their own or taken together amount to serious professional misconduct.”
[43]The Privy Council concluded at [16] that the misdirection was material. It then addressed (at [17]) the question whether the misdirection may have affected the finding of serious professional misconduct in the following terms:
“The question now remains whether, if the correct advice had been given on the issue of what contributed or was capable of constituting serious professional misconduct in the particular circumstances of this case, the outcome would have been the same? Their lordships are unable so to conclude. … There was undoubted negligence but something more was required to constitute serious professional misconduct and to attach the stigma of such a finding to a doctor of some 25 years standing with an hitherto unblemished career. Their Lordships are left with a profound sense of unease and are far from satisfied that if properly advised the PCC would inevitably have arrived at the same conclusion. Moreover, if the finding of serious professional misconduct had been made on the basis of a single clinical error, as opposed to generalised defects in his practice, it is at least possible that the PCC would not have imposed these or any conditions.” [Emphasis in the original]
[44]The Privy Council did not decide that Dr Rao’s conduct did not amount to serious professional misconduct. Having found that the Legal Assessor’s direction was materially defective, its ruling was that it was not satisfied that, if a proper direction had been given, the PCC would inevitably have arrived at the same conclusion. That ruling admits the possibility that the PCC may well have reached the same conclusion if properly directed. Equally, in relation to sanction, the Privy Council went no further than to admit the possibility that, if properly directed, the PCC would not have imposed the conditions that it did or any conditions. The Privy Council did not rule that it would have been wrong for the PCC, if properly directed, to have imposed the same conditions. The success of the appeal in Rao stemmed directly from the misdirection: the passages at the start of [11] and at [17] to which I have referred state expressly that the Privy Council had not reached a decision that Dr Rao’s conduct was not serious professional misconduct.[45]Silver v GMC was a later decision of the Privy Council. It concerned the first blemish in a career that had lasted 38 years before the events in question. The doctor’s patient was 80 years old and suffered from arthritis. As the Privy Council summarised the case against the doctor:
“The essence of the complaint was that over a nine day period despite a number of prompts from the son, a daughter and two other health care professionals, the appellant failed to ensure that the patient received suitable or prompt medical attention following a fall in her home. The patient was eventually admitted to hospital by the emergency services and found to be suffering from a fractured neck of the left femur.”
[46]The appellant doctor’s primary factual complaint was that the PCC should have rejected the evidence of the complainant as tainted and untrue. This head of challenge was rejected, as were two further grounds of complaint alleging that the PCC had wrongly reached findings of fact adverse to the doctor.[47]The appellant then submitted that the findings of fact did not justify a finding of serious professional misconduct and that the Committee’s approach was heavy handed and unfair. Although the Privy Council allowed the appeal, it did not do so on the basis of the appellant doctor’s submissions. At [16] it identified that the PCC had made its finding of serious professional misconduct before taking into account matters that were relevant to that finding. Having held that this offended against the axiomatic principle that “all the relevant circumstances must be considered before a finding of serious professional misconduct can be arrived at” the Privy Council said, at [21]:
“Although the case does not turn on any advice tendered by the legal assessor, their Lordships are left with a profound sense of unease and are far from satisfied that, if the proper sequence of events had been followed and the appropriate questions posed and answered, the Committee would inevitably have arrived at the same conclusion on the “seriousness” issue. Thus the integrity of the finding of serious professional misconduct is undermined and it should be set aside.”
[48]The Privy Council went a step further, describing the case as “one of the rare occasions where it would be right and proper for the Board to substitute its own decision for that of the Committee.” It had reviewed all the circumstances and:
“having given due weight to the appellant’s long, unblemished record as a single handed practitioner in a deprived area, their Lordships have come to the conclusion that his misconduct did not call for the opprobrium that inevitably attaches to a conviction of the disciplinary offence.”
[49]It is to be noted that, although the Privy Council substituted its own decision, the door to its doing so was opened by the procedural irregularity which it had identified. Furthermore, in reaching its decision, the Privy Council did not say that a finding of serious professional conduct would have been inadmissible or appealable if the PCC had directed itself correctly – as in Rao it concluded that it was not inevitable that, if the PCC had acted properly, it would have reached the same conclusion. Thus, although the case states the Privy Council’s conclusion when substituting its own decision, it does not demonstrate that a contrary decision would have been wrong or appealable in the absence of the procedural irregularity.[50]Nandi v GMC is a decision of Collins J in October 2004 on an appeal from the conviction of Dr Nandi by the PCC on a charge of serious professional misconduct. It appears to have been an extempore judgment. The case related to the treatment of three patients: i) The first involved a technical breach of regulations concerning the registration of patients and dated back to 1997. It was submitted by the GMC on the appeal that it “fell away” in relation to serious misconduct but it remained a matter which the PCC was entitled to take into account when looking at the matters that they had found proved in the round; ii) The second involved a failure in early 1998 to make an adequate assessment of a patient’s condition or to draw appropriate conclusions from some of her symptoms. Collins J identified that it was not clear on what basis Dr Nandi could have drawn appropriate conclusions in the absence of a finding that he had been told of the symptoms. The patient was later admitted to hospital after a call to a locum doctor, and she died 17 days later of advanced Crohn’s Disease and peritonitis. It was not suggested that Dr Nandi’s failings had contributed to her death or deprived her of treatment that might have saved her life; iii) The third involved a finding by the PCC that Dr Nandi should have seen a patient between 12 and 19 October 2001 to assess whether there was any physical condition accounting for his illness, whether there was any significant change in his mental condition, and whether it was safe to leave him at home or whether he should be hospitalised, either voluntarily or otherwise.[51]The finding of serious professional misconduct was challenged on two grounds. First it was submitted that no reasonable tribunal could have made the findings of fact made by the PCC. Second, it was submitted that, taken at their highest, the findings did not disclose serious professional misconduct.[52]Collins J rejected the first head of challenge, holding that the Committee had been entitled to make the findings it did. Turning to the finding of serious professional misconduct, Collins J held (at [40]) that the Committee should not have given any weight at all to the first complaint but that the Committee had given it some weight in reaching its conclusion on serious professional misconduct. In relation to the second complaint, Collins J identified that Dr Nandi, who had been very busy at the time he was contacted about the patient, had arranged for a locum doctor to visit. He reviewed the evidence about what had happened and concluded (at [44]) that:
“It may well be that it is wholly proper to regard Dr Nandi’s actions as falling below the standard to be expected and certainly falling below that required by good medical practice, but that does not mean that it should be regarded as serious misconduct. It is certainly capable of amounting to misconduct and I have no doubt that the Committee could not be criticised for taking that view, but one looks at what he actually did and what the results of what he did were, namely to enable Medicall to be contacted. The locum doctor took the view that an ambulance was needed – we do not know what he was told and we do not know what information he elicited. I am bound to say that I have difficulty in the circumstances in agreeing with the view that the conduct in relation to [the patient] amounted to serious professional misconduct.”
[53]Turning to the third complaint, Collins J highlighted various facts associated with the difficult nature of the patient including that, for whatever reason, the patient had not attended the surgery, which made formal assessment and examination difficult. He was not satisfied that a letter sent by Dr Naudi to the consultant about the patient was misleading. He referred to ambiguity in the Committee’s determination and then asked himself whether the finding of serious professional misconduct was, in all the circumstances, one which ought to have been made. His conclusion (at [51]) was:
“It seems to me that the Committee has taken altogether too harsh a view of what happened here and, as their reasons show, have given more weight than they should to the matters which they refer to and have regarded a falling below the standards of practice set out in the guidance as itself sufficient to amount to serious professional misconduct.”
[54]The following points are to be noted about this decision: i) Collins J identified two clear errors in the approach of the committee. First, in considering the issue of serious professional misconduct it had given weight to the first complaint when it should have given it none; and, second, it had applied the wrong test by regarding falling below the standards of practice set out in professional guidance as itself sufficient to amount to serious professional misconduct; ii) He engaged in a detailed review of the underlying facts which led him to a particular view of the gravity of the doctor’s conduct in relation to the second and third complaints; iii) He accepted that the PCC could regard conduct which fell below the standard to be expected and below that required by good medical practice as capable of amounting to misconduct, but he emphasised the need to have regard to what the doctor actually did; iv) His decision related specifically to the facts of the case he was considering.[55]I am unable to agree with Ms Bradley’s submission that these three cases lead to the conclusion that Dr Ashton was not guilty of misconduct. First, neither Rao nor Silver held that the PCC in those cases would have been wrong if it had addressed the issue correctly and concluded that the conduct in question had amounted to serious professional misconduct. Second, Collins J concluded on a detailed review of the facts of Nandi that all that had been shown was a simple failure to comply with guidance and good medical practice. That does not show or even suggest that Dr Ashton’s conduct should be characterised in the same way. On the contrary, the Panel in the present case had the evidence of Dr Archard which it was entitled to accept and which supported the conclusion that Dr Ashton’s failure was so serious as to amount to misconduct. Third, having reviewed the evidence and materials available on this appeal, I am not satisfied that the Panel either omitted, misinterpreted or took an erroneous view of the facts of this case. Fourth, each of Rao, Silver, and Nandi is a decision on its facts and I am not persuaded by comparison of the facts of the three decisions with the facts of this case that an argument can properly be made by analogy that Dr Ashton’s conduct did not amount to misconduct. While it is correct that the patient in Rao was described to the doctor in terms that were suggestive of serious illness and the patient in fact died that night, the PCC in that case was considering the doctor’s reaction to a telephone conversation. Self-evidently, the facts were different from the present case. The same is true of Silver: it is not obvious that a failure to react appropriately to a patient who is reported to have had a fall is similar in gravity to a failure to refer a suspected cancer patient urgently by a doctor after a consultation and with full knowledge of the patient’s background and notes. The facts in Nandi are quite distinct from the facts of the present case and, once again, it is not obvious that the cases are of similar gravity. What is obvious is that the Panel was referred to the three cases and took them into account; and that the panel was better placed than the Court to judge the gravity of Dr Ashton’s conduct because of its expertise and the fact that it had heard the evidence that underpinned its findings. The Panel applied the correct legal test, namely whether Dr Ashton’s failure was “deplorable” or an “elementary and grievous failure”; and there was uncontradicted evidence from Dr Archard upon which it was fully entitled to conclude, applying its expertise, that his failure merited those descriptions.[56]Applying the approach outlined at [3-5] above, I am not persuaded that the finding of misconduct was wrong. Though it is not necessary for me to say so, I consider it was clearly right. Once it is accepted that Dr Ashton should have recognised on 16 July 2009 that Patient A was or might well be suffering from cancer, an urgent referral was very important because of the potentially disastrous consequences of delay in the diagnosis of cancer. I would therefore not be surprised at and would accept the evidence that for a general practitioner to fail to refer urgently in those circumstances would be regarded as deplorable, elementary and worthy of opprobrium.[57]For these reasons, the ground 1(a) of Dr Ashton’s challenge fails.

Ground 1(b): Impairment of Fitness to Practice

(b) : Impairment of Fitness to Practice Submissions

[58]In support of this head of challenge, Ms Bradley makes a number of submissions: i) She advances a semantic argument that the Panel erred in referring to deficiencies (plural) when this was a single failure on Dr Ashton’s part; ii) She submits there was no evidential basis for the Panel’s conclusion that it could not be satisfied that the risk of repetition of such behaviour was highly unlikely, given that this was the only identified failure on Dr Ashton’s part in 33 years of practice; iii) She submits that the Panel was wrong to take into account that Dr Ashton had not at any stage acknowledged that his conduct was inadequate, contending that it was not possible for Dr Ashton to make admissions to [7] of the charge because of the presence of the word “and” to which I have referred previously; iv) She submits that the Panel’s reference to breaching “a fundamental tenet of the profession, namely to protect the health of a patient and to provide a good standard of practice and care” was not justified and vitiates its finding of impairment; v) She submits that public confidence would not be undermined if the public were apprised of all of the facts and the evidence; vi) She submits that any impairment of Dr Ashton’s fitness to practise was “easily remediable” in the sense used by Silber J in Cohen v GMC [2008] 581 (Admin).[59]In reply, Mr Hare submits that Dr Ashton’s submissions adopt an unjustifiably semantic approach to the terms of the charge and the Panel’s determination. And he relies upon the complete absence of any evidence of either regret or insight on the part of Dr Ashton.

Discussion

[60]The first argument hinges on the use of the word “deficiencies” at points in the determination of impairment. It ignores the fact that the Panel had identified precisely what it was dealing with on the previous page. It is, in my judgment, quite unreal to suggest that the panel had, in the course of one page, forgotten the scope of the misconduct it had just identified. Read fairly and in context it is clear that it had not done so. This argument has no substance or merit and is rejected.[61]The Panel “paid particular attention” in its finding on impairment to Dr Ashton’s 30 year medical career and to Ms Bradley’s submission that the risk of repetition was remote. Before the Court, as before the Panel, Ms Bradley submitted that the fact that Dr Ashton was no longer practising as a general practitioner of itself meant that the risk of repetition was remote. However, she herself provided the answer to this submission when she informed the Court that Dr Ashton is at present not on a performers list, which would be a pre-requisite to his returning to general practice and that the findings of misconduct and impairment would necessarily be disclosed if he were to apply to return to a performers list. That of itself provides protection to the public since, as the Panel noted, it would be open to Dr Ashton in the absence of such findings to return to general practice should he wish to do so. The protection would be reduced if there was a finding of misconduct but no finding of impairment since, by definition, the GMC would have held that the misconduct did not affect his future ability to practise.[62]The real problem for the Panel, as it noted, and now for the Court is the absence of any evidence or indication that Dr Ashton has any insight into the seriousness of what he has done. He chose not to give or call evidence at stage 1 of the enquiry. After the findings of fact were made in July 2012, there was a period of four months to the November hearings when it would have been open to him to submit evidence going to his appreciation of his misconduct and the issue of impairment, but he chose not to do so. Ms Bradley asserted that the Panel had been shown that he had learned lessons. When pressed to make good that assertion she was only able to refer to a short passage in her submissions which was highly equivocal D18/20 at D-G and certainly not what either the Panel or, now, the Court would hope and expect to see, particularly from a doctor of long standing and unblemished previous career who - it might be hoped - would be keen, if he could, to demonstrate that he fully appreciated the significance of his conduct and was ready to take steps to ensure it could not happen again.[63]Thus, even if in principle Dr Ashton’s fitness to practise might have been “easily remediable”, there was no evidence that it was remediable in fact in Dr Ashton’s case or that he had made “any efforts … towards remediation of his proved deficiencies”. In my judgment the Panel was entitled to take this into account as a matter of significant concern and weight in considering the issue of impairment, and it did so.[64]The failure to acknowledge that his conduct was inadequate went beyond merely not admitting the charge when it was laid against him, since it was persisted in for the months following the determination of facts right up to the Panel’s determination and continues to the present day. Miss Bradley submitted that it was not open to Dr Ashton to make admissions because of the wording of paragraph 7 of the charge and the conjunctive use of the word “and” to which I have already referred. To my mind this too is a quite unreal submission. It would have been open to Dr Ashton to acknowledge that his conduct had been inadequate in respect of the matters alleged at [4] of the charge, whatever the wording of [7], at any stage. He could have done so formally through his counsel, or by the submission of a letter or evidence of his own. He could have done so in terms which accepted that his inadequacy justified findings of misconduct and, if he wished, impairment; or he could have done so in terms which, while accepting that he had fallen below proper standards, kept open either or both of those issues. In the event he did nothing.[65]The criticism of the panel’s reference to Dr Ashton breaching a fundamental tenet is equally semantic and unfounded. It is submitted that the fundamental requirement was for the doctor to make a referral to the correct specialist and to provide the specialist with the necessary information for them to follow up on the referral appropriately. That submission fails to recognise the thrust of what the Panel was saying: in order to discharge the fundamental tenet of the profession which required Dr Ashton to protect the health of Patient A and to provide a good standard of practice and care, Dr Ashton should have referred Patient A urgently. His failure to do so was therefore a breach of the fundamental tenet. That was a breach which the Panel was entitled to conclude was liable to undermine public confidence in the profession if the full facts were known.[66]For these reasons, Ground 1(b) of Dr Ashton’s challenge fails.

Ground 2: Sanction of 6 Months’ Suspension

[67]There are three limbs to Ms Bradley’s submissions on the sanction of 6 months’ suspension. She submits that: i) The Panel erred in law in concluding that taking no action would be insufficient and inappropriate; ii) Conditions were workable and should have been imposed in lieu of suspension; iii) Suspension was unnecessary and disproportionate.[68]In reply, Mr Hare submits that Dr Ashton’s lack of insight was an important consideration when considering sanction, and that conditions were not workable or appropriate. And he warns the Court against an exercise in re-sentencing as opposed to the exercising of a secondary judgment as outlined in the passages from Raschid cited above.

Discussion

[69]In support of her submission that the Panel erred in law because no order was necessary, Ms Bradley submits that the Panel had evidence that audits had been carried out of his patient records while working at Addenbrooke’s Hospital (where he had been carrying out emergency medicine) which confirmed that his documentation, investigation and management had been satisfactory and that post-operative patient surveys were being arranged of his cosmetic surgery patients. In addition, there was evidence from his supervisors which raised no concerns about his clinical competence. Dealing with these points in turn: i) The Panel noted the audits of his record keeping but considered them to be of marginal significance given that the charge relating to record keeping had not led to a finding of misconduct. The Panel was right to do so; ii) The Panel noted the information from Dr Ashton’s supervisors and concluded that there was no “evidence of deep-seated personality or attitudinal problems”; but the problem remained that there was little evidence of insight.[70]The Panel concluded that, for the reasons given in the determination, a sanction was necessary. In doing so it referred to the need “to protect the public, declare and uphold proper standards of conduct and behaviour and maintain public confidence in the medical profession.” As the authorities cited above show, these were appropriate criteria for the Panel to apply and no error of law is shown.[71]Both parties referred to the GMC’s “Indicative Sanctions Guidance for the Fitness to Practise Panel” current at the time of the Panel’s determination. The following passages are relevant:
“[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. … [63] Where a Panel has found a doctor’s fitness to practise impaired by reason of adverse physical or mental health the conditions should include conditions relating to the medical supervision of the doctor as well as conditions relating to supervision at his / her place of employment. Generally, it is inappropriate to impose conditions regarding medical supervision if the doctor’s fitness to practise has not been found impaired by reason of adverse physical or mental health. An exception would be a case where a doctor has refused to undergo a health assessment. … [69] Suspension has a deterrent effect and can be used to send out a signal to the doctor, the profession and the public about what is regarded as behaviour unbefitting a registered medical practitioner. Suspension from the register also has a punitive effect, in that it prevents the doctor from practising (and therefore from earning a living as a doctor) during the period of suspension. Suspension will be an appropriate response to misconduct which is sufficiently serious that action is required in order to protect patients and maintain public confidence in the profession. However, a period of suspension will be appropriate for conduct which falls short of being fundamentally incompatible with continued registration and for which erasure is more likely to be the appropriate response (namely conduct so serious that the panel considers that the doctor should not practise again either for public safety reasons or in order to protect the reputation of the profession). This may be the case, for example, where there may have been acknowledgement of fault and where the panel is satisfied that the behaviour or incident is unlikely to be repeated. The panel may wish to see evidence that the doctor has taken steps to mitigate his/her actions (see paragraphs 25-29 above). [70] 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 gained insight into the deficiencies and has the potential to be rehabilitated if prepared to undergo a rehabilitation programme. … [74] Panels must provide reasons for the period of suspension chosen, including the factors that led them to conclude that the particular period of suspension, whether the maximum available or a shorter period, was appropriate.”
[72]Although [57] of the Guidance indicates that conditions might be most appropriate in cases following a single incident, it does not follow that they will be. In particular, [57] also notes that “Panels will need to be satisfied that the doctor has displayed insight into his/her problems … .” For the reasons already given, the Panel in this case was not satisfied that Dr Ashton had displayed insight and was justified in taking that view.[73]In the present case, any supervision imposed as a condition of registration would not involve permanent continuing oversight and would therefore not protect the public against a repetition of Dr Ashton’s very serious error of judgment. The Panel considered whether any conditions would remedy Dr Ashton’s elementary failing but concluded that it was unable to devise them. Ms Bradley submits that a condition requiring the auditing of his work, perhaps relating specifically to referrals, would have been possible. But such auditing would be retrospective and the Panel was entitled to reach the conclusion that conditions of that nature would not provide sufficient protection in a case where evidence of insight and remediation was lacking.[74]Viewed overall, the decision to impose the sanction of suspension was reasoned and has not been shown to be unreasonable so as to justify the Court in substituting a different sanction or no order at all. Comparing the terms of the Panel’s determination with the paragraphs of the Guidance to which I have referred above shows that the Panel kept that guidance in mind and applied it. In particular, [57] provides no support for Dr Ashton’s submission that the order for suspension was unnecessary and disproportionate; nor does Raschid, which highlights that punishment is neither the only nor necessarily the primary driver for the Panel considering sanction.[75]For these reasons, Ground 2 of Dr Ashton’s challenge fails.

Ground 3: Immediate order of suspension

[76]Ms Bradley acknowledges that a Panel may impose an immediate order where it is satisfied that it is necessary for the protection of members of the public or is in the public interest or in the best interests of the practitioner. But she submits that none of these criteria are satisfied in the present case. That is disputed by Mr Hare.

Discussion

[77]The Indicative Sanctions Guidance deals with immediate suspensions at [121-126] which includes the following:
“121. The doctor is entitled to appeal against any substantive direction affecting his/her registration. The direction does not take effect during the appeal period (28 days) or, if an appeal is lodged, until that appeal has been disposed of. During this time, the doctor’s registration remains fully effective unless the panel also imposes an immediate order. 122. The Panel may impose an immediate order where it is satisfied that it is necessary for the protection of members of the public, or is in the public interest, or is in the best interest of the practitioner. 123. An immediate order might be particularly appropriate in cases where the doctor poses a risk to patient safety, for example where he/she has provided poor clinical care (ie breached paragraphs 2-11, Good Medical Practice) or abused a doctor’s special position of trust (Good Medical Practice) paragraph 32, 56-57) or where immediate action is required to protect public confidence in the medical profession … 126. Having considered the matter, the decision whether to impose an immediate order will be at the discretion of the panel based on the facts of each case. The panel should, however, have regard to the seriousness of the matter which led to the substantive direction and consider carefully whether it is appropriate for the doctor to continue in unrestricted practice pending the substantive order taking effect. The Panel should consider the matter in camera and when announcing its decision whether or not to impose an immediate order, give reasons for the decision taken”
[78]The Guidance recognises that the effect of an order of immediate suspension is to impose an additional period of suspension upon a doctor because he or she will normally not be suspended until the expiry of 28 days or, if an appeal is brought, until the appeal has been disposed of. The statutory test for the imposition of an immediate order is either(a) that it is necessary for the protection of members of the public, or(b) that it is in the public interest, or(c) that it is in the best interests of the practitioner.[79]The Panel stated the correct test. The core of its reasoning appears to have been that “irrespective of his field of practice, a medical practitioner must be able to assess the clinical needs of his patient and make urgent referral decisions when required to do so.” It then noted again Dr Ashton’s failure to acknowledge his error and concluded that “It therefore cannot be satisfied that his misconduct would not be repeated.” On this basis it determined that immediate suspension was necessary for the protection of members of the public and in the public interest, in order to maintain public confidence in the medical profession and to declare and uphold proper standards of conduct and behaviour.[80]I acknowledge, as I have acknowledged before, the expertise of the Panel; and I recognise that the Court is not to re-sentence merely because the Panel has imposed a sanction that is different from what the Court would have done if it had been the primary decision maker. However, even making due allowance for the Panel’s expertise, I am unable to accept that the reasons given by the Panel justify the imposition of an immediate suspension in this case. At this stage, a number of the points made by Ms Bradley earlier on in the appeal come into sharper focus and have greater validity. Dealing first with protection of members of the public, at the time of the determination Dr Ashton was not working at all and his employment, should he return to it, was in carrying out cosmetic surgery procedures. In general terms, the evidence was that his work in that field was satisfactory. More specifically, it seems inherently unlikely that a person carrying out such work would need to make a referral elsewhere, except possibly on rare and exceptional occasions and no suggestion to the contrary has been advanced. While it is true that Dr Ashton might have to interpret a referral from someone else, his misconduct related to the terms in which he gave a referral and not to any deficiency in interpreting referrals from others, which is quite different. There was no reason to believe that Dr Ashton could not properly interpret a referral that was made to him, which is by far the most likely involvement with referrals that he would have in his work as a cosmetic surgeon. While he remained in that field, assuming that he returned to work, the risk to members of the public seems negligible; and, given the relatively short period during which an appeal had to be lodged (28 days) and the relative speed with which such an appeal might be brought on, the risk over the entire period remains slight. Given the finding of misconduct and impairment, Dr Ashton was highly unlikely to return to general practice in the interim, for the reasons already given concerning his need to be included on a performers panel. It is therefore not possible to identify any rational basis for finding any material risk existed against which it was necessary to protect the public. Although [123] of the Indicative Sanctions Guidance refers to cases where the practitioner has provided poor clinical care as being cases where immediate suspension may be appropriate, the touchstone even in those cases is that the doctor should pose a risk to patient safety: the fact that a case concerns poor clinical care does not of itself demonstrate a need to protect the public by an immediate order of suspension.[81]The public interest is broader than the need to protect members of the public. The panel appears to have regarded the public interest justification to have lain in the maintenance of public confidence in the medical profession and declaring and upholding proper standards of conduct and behaviour. While these are very important purposes that are closely related to the Panel’s power to impose sanctions, it is again hard to see why public confidence would be eroded by permitting Dr Ashton to practise in a remote field of medicine during the relatively short appeal period; and the upholding of proper standards of conduct and behaviour may reasonably be said to have been achieved by the Panel’s decision to impose the 6 months’ suspension, without the need for an immediate suspension as well.[82]In my judgment, this Ground of Appeal is finely balanced. On the one hand, the Court should pay due attention to the views of the primary decision maker and should not simply engage in a resentencing exercise. On the other, having examined the reasons given by the Panel, they appear to be very thin and not materially supported by reference either to the terms of s. 38 of the Act or to the terms of [121-126] of the Indicative Sanctions Guidance. Although the matter is finely balanced, when the balance is struck I consider it falls decisively in favour of Dr Ashton and that the Panel’s order to impose the immediate suspension was unjustifiable and wrong.[83]For these reasons, Ground 3 of Dr Ashton’s challenge succeeds.

Conclusion

[84]For the reasons set out above, Dr Ashton’s challenge under grounds 1(a), 1(b) and 2 fail. His challenge under ground 3 to the order of immediate suspension succeeds.

Cited in 2 later judgments