Goodchild-Simpson v General Medical Council [2014] EWHC 1343 (Admin)

Case No CO/13501/2013

[2014] EWHC 1343 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

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

Date 02/05/2014

Before

MR JUSTICE GREEN

Between

Dr Matthew Roger Goodchild-SimpsonAppellant

General Medical CouncilRespondent

Mr Adam Swirsky (instructed by Direct Access) for Appellant

Mr Ivan Hare (instructed by GMC Legal) for Respondent

Hearing Hearing date: 4 April 2014

Judgment

Mr Justice Green :

Introduction

[1]The Appellant, Dr Goodchild-Simpson, appeals as of right pursuant to section 40 of the Medical Act 1983 (“MA 1983”). He appeals against the determination of the Fitness to Practise Panel (“the FPP”) of the Medical Practitioners Tribunal Service of the General Medical Council (“GMC”) of 22nd August 2013 to suspend his registration for a period of 9 months.

[2]The jurisdiction of the High Court pursuant to section 40 MA 1983 is well known. Such appeals are by way of re-hearing. However this does not mean that the court will re-try the merits of the case de novo: see Rose Moseka v Nursing and Midwifery Council

[2014] EWHC 846 (Admin)

at paragraphs [21]-[22]. When exercising its jurisdiction the High Court will bear fully in mind that some deference will be paid to the fact that the lower court or body is an expert tribunal whose membership is selected for its experience in the subject matter of the matters before it. The High Court will recognise that the lower court or tribunal has had the benefit of hearing and seeing the witnesses and is therefore in a better position to judge their credibility and reliability than is the appellate court.

Relevant Facts

[3]The Appellant has been subject to GMC regulatory intervention since 1994. During his period of registration he has been subject to periodic sanctions including a period of indefinite suspension in 1997. He first came to the attention of the GMC in May 1994 when information was tendered suggesting that the Appellant’s fitness to practise might be seriously impaired. He was invited to be medically examined and was, thereafter, referred to the Health Committee in consequence of him refusing to accept the recommendations of medical examiners.

[4]Throughout 1995-1997 he was subject to a series of fitness to practise investigations each of which found his fitness to be seriously impaired. He was subject to periodic 12 month suspensions in February 1995 and in February 1996. He was subject to an indefinite suspension in February 1997. Similar findings of serious impairment were made in September 2001, September 2002, October 2003 and October 2004. Following these investigations he was subject to periods of conditions. In November 2006 his fitness to practise was found to be impaired by reason of adverse mental health and he was subjected to 18 months conditions. Further fitness to practise hearings were convened in May 2008, November 2009 and July 2011. These found that his fitness to practise continued to be impaired by reason of adverse mental health.

[5]In the course of 2011 the GMC received negative feedback regarding the Appellant’s abilities and performance which appeared to be unrelated to his health. These included prescribing errors, lack of clinical skills and knowledge, poor communication and the taking of certain clinical decisions which it was perceived might have placed patients at risk. It was suggested further that the Appellant demonstrated no insight into the problems which he was confronting in his practice.

[6]On 16th November 2011 the GMC invited the Appellant to undergo a Performance Assessment. The Performance Assessment Report (“the Assessment Report”) was issued on 21st September 2012. The assessment team comprised a combination of lay and medical assessors together with a medically qualified and very experienced team leader. The conclusion of the assessors was that the Appellant’s performance was acceptable in the areas of: investigations, other, maintaining, teaching and training, and working with colleagues. However the assessors rated his performance as “unacceptable” in relation to: assessment, treatment, patients, and record keeping. Paragraphs 6.1.3-6.1.6 of chapter 6 of the Assessment Report (“Summary and Recommendations”) stated as follows:

“6.1.3 The reasons for these judgements are set out in the relevant sections of the report. As noted in the body of the report, the entries in the clinical notes are very brief and consequently we had difficulty in deciding if the deficiency was in record keeping, assessment, or both. 6.1.4 We are confident from the information obtained in CBD and the OSCE that the Doctor’s communication with patients was unacceptable. He appeared to be aware of the need for patient centred consulting but could not demonstrate this. 6.1.5 The Doctor’s knowledge base was acceptable as demonstrated by the knowledge test. His difficulties therefore lie in his application of knowledge. 6.1.6 We understand that the Doctor has had a total of 6 months training in Emergency Medicine as part of his GP rotation. This is much less than recommended for a middle grade (3 years).”

[7]The assessors concluded that the Appellant was undecided as to the branch of medicine he wished to pursue. However it was the view of the assessors that adequate skills in relation to assessment, treatment, record keeping and patient communication were required for the Appellant to act as a junior doctor in any branch of medicine and, as I have already recorded above, his performance was found to be unacceptable in relation to each of these requirements.

[8]The assessors also found it noteworthy that a number of e-mailed comments from the Appellant about the evidence were “…incomprehensible, irrelevant and in some cases bizarre.” The assessors then gave examples of responses from the Appellant which may, fairly, be said to meet those descriptions.

[9]Although their assessment had been focussed upon the area of Emergency Medicine the assessors considered that the deficiencies they had identified were “generic in nature” and would apply to any speciality. They concluded that their recommendations should therefore apply across the board. With regard to recommendations they suggested that the Appellant should not work as a middle grade doctor in Emergency Medicine but that he could work as a junior doctor which would, by definition, be a closely supervised training post where his work would be reviewed by a senior professional. The Appellant was, in the light of this assessment, referred to the FPP in relation to both health and performance concerns. His case was considered over the course of a 14 day hearing held by the FPP between 5th - 22nd August 2013. The Appellant was present but was not represented other than through a Mackenzie friend for a period of two days and a trainee barrister whilst he was giving his own evidence. The FPP heard evidence from a number of expert witnesses called by the GMC in relation to both performance and health. The Appellant called evidence from other medical specialists on both of these issues.

[10]The FPP followed the standard 3-stage decision making process: findings of fact, decisions on impairment, sanctions.

[11]In relation to the findings of fact made by the FPP in relation to performance the following is a summary: (1) General conclusion on performance: The Assessment Report was found to be a fair, credible, reliable and accurate document. A sample of 50 records had been reviewed by the assessors based upon the Appellant’s recent professional practice together with a range of other evidence. All of this justified the assessors’ conclusions. The view of the assessors was unanimous. The FPP held that the performance assessment was properly undertaken by people with the requisite experience and objectivity and their conclusions could be relied upon. The FPP Determination addressed to the Appellant specifically found:

“The panel is satisfied on the evidence that the performance assessment was carried out in a fair manner and considered a representative selection of your work, commensurate with the level at which you were working.” (2) Assessment of patients: In relation to the conclusion of the assessors that the Appellant’s professional performance in relation to the assessment of patients’ conditions was unacceptable the FPP found the conclusions in the Assessment Report to be proven. The FPP identified, from amongst the 50 cases studies considered by the assessors, 20 instances of unacceptable assessments being made of patients. These included by way of illustration failures to interpret an ECG correctly and the misinterpretation of heart rhythm. In relation to one patient the Appellant referred to a list of drugs none of which were clinically indicated and which were inconsistent with current life support guidelines. The Appellant had failed to follow any of the local or national guidelines notwithstanding that the relevant guidelines, including those relating to prescribing, were posted in the A & E department for ease of reference. The FPP was satisfied that the assessment team reached a reasonable and accurate conclusion. (3) Provision and arrangement of treatment: In relation to the assessors’ conclusion that the Appellant performed to an unacceptable level in terms of provision and arrangement of treatment, the FPP found that the conclusions in the Assessment Report were proven. The FPP noted 11 examples of unacceptable performance in this area. Most of these examples related to inappropriate prescribing. In relation to one example the FPP stated: “In one case you prescribed ciprofloxacin for a patient who you thought had Lyme disease and you also prescribed Malathion for crab lice. There was no evidence that this patient had crab lice but that he had suffered from tick bites. In your case based discussion with the assessors, you admitted that you were trying to crack a walnut with a sledgehammer.”

The FPP concluded that the assessors reached a reasonable and accurate conclusion in this category. (4) Failure to keep proper records: In relation to the assessors’ conclusion that the Appellant failed properly to maintain records, the FPP also found this conclusion proven. The FPP cited, by way of illustration, that in relation to a patient where the Appellant had incorrectly interpreted an ECG he had written on three occasions in the clinical notes that Isoprenaline had been administered when, in fact, the patient had been prescribed adenosine. When questioned about this, the Appellant was unable to explain why he had not corrected his mistakes in the notes. Generally the evidence was that the Appellant made only brief notes and the details provided of his management of patients were insufficient. The FPP found that the performance assessment team had reached a reasonable and accurate conclusion. (5) Relationship with patients/communication skills: In relation to the assessors’ conclusion that the Appellant’s relationship with patients was unacceptable the FPP, once again, identified a number of unacceptable illustrations. In relation to this the FPP recorded:

“The panel has noted that the unacceptable examples in this category related to poor communication skills. During the case based discussions, there was one example of a patient with a possible chest infection, who was also suffering from metastatic cancer. You suggested that you would have asked if the patient was allergic to penicillin. It did not occur to you that you should have asked the wishes of this particular patient. In another example, during the tests of competence, you did not attempt to check the patient’s understanding although one patient had told you that “I’m finding this quite difficult to take in”

. Further examples included your use of medical jargon, which was unlikely to be understood by your patients. In his third party interview, Dr Lakkappa told the assessors that you had struggled initially with end of life care and that you had found it difficult to express your views or the patients’ decisions in a clear way. The FPP concluded that the assessors had reached a reasonable and accurate conclusion.” (6) Results of the Objective Structured Clinical Examination Test (“the OSCE test”): In relation to the assessors’ conclusion that the Appellant scored below the 25th percentile in four of the 14 stations in the OSCE test (concerning chest pain, prescribing, visual field, and basic life support) the FPP found that on the evidence before them the OSCE tests were conducted fairly and in line with accepted practice and the conclusions therefrom were justified.

[12]The FPP also addressed the health case against the Appellant. In relation to this the FPP heard from a series of medical experts called by the GMC who gave evidence about the Appellant’s mental health. The FPP also heard from the Appellant and from a Dr Kamal Gupta, an independent Consultant Psychiatrist who carried out an assessment of the Appellant’s condition in May 2013 at his request. The Panel heard further from a Dr Ashok Kumar Patel by telephone conference. The Panel was also advised, by its legal assessor, as to the test that it should apply. In particular reference was made to the so-called “Shipman” test identified by Dame Janet Smith in her Fifth Shipment Report cited with approval in CHRE v(1) NMC and

(2) Grant

[2011] EWHC 927 (Admin)

and most recently endorsed by the High Court in Moseka (ibid) at paragraphs [25]-[26]. It is not necessary to set out the test in full. It suffices to record that the enquiry which the FPP was required to adopt was to ask itself whether the conduct of the Appellant gave rise to a risk of harm to patients. In relation to health the FPP concluded that bearing in mind its duty to consider the public interest which included, inter alia, the protection of patients, the maintenance of public confidence in the profession and the declaring and upholding of proper standards of conduct and behaviour within the profession, the Appellant suffered from a serious condition which was at risk of relapse and that, accordingly, the Appellant’s fitness to practise was impaired by his adverse mental health.

[13]In relation to impairment by reason of deficient professional performance the FPP took as its starting point the prior assessment that he was appropriately assessed at the level of a middle grade doctor working in Emergency Medicine. The FPP accepted the conclusions of the assessors that the Appellant’s performance was deficient at this level and that the deficiencies were serious. They cited, by way of illustration, failings relating to a patient complaining of chest pain which could have resulted in serious, even fatal, consequences had it been treated incorrectly, where it was found that the Appellant’s treatment was, in actual fact, deficient. They cited, by way of further illustration, instances of the prescription of incorrect dosages of medication notwithstanding that the British National Formulary (“BNF”) was within easy reach. They noted that there was a recurring theme throughout the assessment of poor record keeping and history taking. The FPP was of the opinion that these illustrations demonstrated an endemic risk to patients. The FPP was also concerned that professional colleagues were worried about the Appellant’s level of insight into his mistakes and his failure to seek help and advice when experiencing difficulties. The FPP concluded that his fitness to practise was impaired because of his deficient professional performance. The FPP also considered that the fitness to practise of the Appellant was impaired by reason of his mental health.

[14]The final issue for the FPP was the appropriate sanction. In relation to this the FPP set out the submissions made to it by the independent legal assessor and on behalf of the GMC, the latter of which were to the effect that a period of suspension of registration was appropriate. With regards to the Appellant’s submissions the FPP recorded that they were “…unfocussed, confused and not easy to follow.” In coming to its conclusion the FPP bore in mind its duty to act in the public interest which included ensuring the protection of patients, the maintenance of public confidence in the profession, and the declaring and upholding of proper standards of conduct and behaviour. The FPP also addressed itself to the principle of proportionality weighing the public interest against the Appellant’s own interests. The FPP recognised that the purpose of a sanction was not to impose a punishment albeit that it could have a punitive effect. The conclusions of the FPP on sanctions may be summarised as follows: i) It was inappropriate to conclude the Appellant’s case without imposing a sanction upon his registration. ii) The imposition of conditions on registration as a sanction would be inadequate to protect the public interest. The FPP had regard to the medical evidence, which it accepted, to the effect that the Appellant’s mental condition was such that he was unable to exercise “good judgement” which the FPP accepted was “pivotal” to making a diagnosis and determining appropriate treatment for patients. The FPP accepted that there was a risk of relapse in the Appellant’s condition and a secondary risk of deterioration of symptoms. The FPP also accepted the medical evidence that the Appellant’s condition had, in fact, deteriorated and that his fitness to practise was “currently seriously impaired”. The FPP took into account the Appellant’s lack of insight into his health and conditions. For all these reasons the FPP considered that a further period of conditional registration was neither appropriate nor sufficient to protect patient safety. iii) The FPP accordingly concluded that a period of suspension was necessary in order to protect patient safety and that the Appellant’s registration should be suspended for a period of 9 months. iv) The FPP concluded that erasure was disproportionate.

[15]It was considered in the circumstances that a 9 month suspension should be imposed and that this might be sufficient to allow the Appellant sufficient time for his health to improve and undergo a further health assessment by the GMC and to permit the Appellant to develop “insight” into his professional performance.

[16]Finally the FPP stated that shortly prior to expiry of the suspension his case would be reviewed by a further Fitness to Practise Panel. The FPP then gave guidance as to what, in its view, would assist that new panel.

[17]I turn now to the Appellant’s appeal. In analysing these submissions it is necessary to consider certain factual issues that I have summarised above in greater detail.

Appellant’s grounds of appeal

[18]Originally the Appellant represented himself. However shortly prior to the hearing Mr Adam Swirsky was instructed on the Appellant’s behalf. The original documents lodged with the appeal did not, regrettably, make very much sense. I am grateful to Mr Swirsky for his assistance in bringing some focus to the Appellant’s case and for the way in which he identified the points arising. Mr Swirsky boiled the Appellant’s grounds down to two grounds. First the fairness of the procedure used by the assessors in relation to the selection of sample cases. Secondly, the choice made by the FPP when it came to sanction as between suspension as a remedy and the imposition of conditions.

[19]I will start by setting out the Appellant’s submissions.

[20]First, as regards the procedure adopted by the assessors Mr Swirsky submitted that the process was flawed because the case studies used by the assessors were not a fair representation of the work the Appellant had carried out over a number of years. Mr Swirsky submitted that this issue was one of elementary fairness. By reference to the Appellant’s CV, it could be seen that the cases were derived from a short tenure at Chesterfield which was terminated by the hospital after less than 3 weeks. It was unfair to use these cases for the following reasons: i) The Appellant was at Chesterfield for less than 3 weeks. ii) His appointment was as a locum without any formal induction. iii) A locum appointment is always difficult but particularly so at the beginning when a new doctor is finding his feet (a point acknowledged in evidence by medical experts). iv) The department was generally disorganised and particularly so over the days from which the case studies were derived (a busy bank holiday). v) It had a bad system of record keeping in any event. vi) The Appellant was not compared to his peers (i.e. other doctors at the hospital in A&E at a similar grade at the same time). vii) The panel should have chosen records from a more representative posting. viii) It would have been better to have obtained records from a longer and more recent posting that the Appellant undertook at Kettering, but if this was not possible then the assessors should have cast their net more widely in order to find a second source of samples to use in conjunction with Chesterfield. It was pointed out that normally samples of 50 cases are taken spread over two different postings.

[21]In relation to sanctions Mr Swirsky focussed upon the distinction between suspension and the imposition of conditions as an appropriate sanction. He recognised that some form of sanction was called for but, in relation to the choice between these two options, submitted that the FPP erred in three principal ways. First, it misconstrued evidence provided to it from Dr Denman to the effect that the Appellant needed a “break”. It was submitted that in context Dr Denman in her evidence was not – as the FPP concluded – suggesting that the Appellant needed a break from practice for health reasons. All she was saying was that because of the great stress imposed upon him by reason of the burden of representing himself (as a litigant in person) over a 14 day FPP hearing he would benefit from time off. This was not the same as saying that he needed time off from medical practice for health reasons and in construing and relying upon her evidence in this light the FPP erred. Secondly, the FPP failed to pay sufficient attention to the interests of the Appellant and his desire to return to work. It was submitted that this was an important consideration and the FPP simply did not address itself in any meaningful way to this relevant consideration in the balancing exercise. Thirdly, it is said that the FPP rejected the option of imposing conditions far too quickly and in doing so dismissed the clear evidence of the majority of experts who gave evidence that the imposition of conditions was sufficient. The conclusion to these submissions was not that the Court should substitute its own view of the appropriate remedy but that, instead, I should quash the decision and remit it to the FPP to be re-taken, this time with a requirement that it address itself properly to the relevant considerations and evidence.

[22]In support of these submissions Mr Swirsky relied upon the following facts and matters arising out of the evidence: i) Some witnesses told the FPP that the Appellant had been a competent doctor and that they had not had any real concerns. Dr Lakkappa, the Appellant’s supervising consultant at Kettering gave evidence that whereas initially he had had some concerns about the Appellant his performance improved after instruction. This was strong evidence that conditions would suffice. Dr Hassan gave evidence that the Appellant:

“performed well and I think [he] coped under pressure when the department is busy and I think from that end I have no major concerns concerning [his] clinical performance”

. A number of witnesses mentioned that the Appellant would benefit from being in a position for a longer period. Dr Hassan pointed out that people needed to get to know the Appellant and that, in substance, he improved with time. ii) It was also noted by Dr Campbell, the team leader for the assessment, that the posting at Chesterfield was “the wrong job”, which Mr Swirsky relied upon to suggest that the Appellant could perform better in other jobs. iii) The GMC assessment team recommended that the Appellant be allowed to carry on in practice at a lower level (ST 1) with supervision which was, it was submitted, a view reinforced by most of the medical evidence (i.e. Dr Denman and Dr Gupta). The FPP should have followed this recommendation. iv) During the course of the FPP hearing both Dr McKeown and Dr Denman revised their opinions, becoming more concerned about the Appellant’s condition. However Dr Denman continued to maintain that the Appellant could practise with supervision and the FPP badly misconstrued her evidence when she suggested that the Appellant needed a one or two month break. Accordingly it was only Dr McKeown who believed that the Appellant was not fit to carry on in practice at all.

[23]With regard to the FPP determination that “in light of [the Appellant’s] serious long term health condition, and the impact it has upon [his] professional practice, a further period of conditional registration is neither appropriate nor sufficient to protect patient safety”, it was submitted that the Appellant had only worked in a medical role for about two weeks over the previous two years and there were no reported complaints from those postings. During the course of his earlier career the Appellant had performed a number of successful medical placements. The conditions imposed by the GMC made it difficult for him to obtain a long-term post and the evidence suggested that he would benefit from stability. The imposition of a nine month suspension served no effective purpose other than to put back the Appellant’s career by a further nine months. A more constructive approach would have been to impose conditions on the Appellant’s registration so that he could apply for jobs for which he was better suited – preferably in disciplines where he had an interest and where the posting was relatively long term and such as to provide him with an element of stability.

Analysis – Ground 1: The choice of samples/fairness

[24]Mr Swirsky categorises this issue as one of fairness. The first point to note is that in truth a decision as to the adequacy of a sample to be used in a performance assessment is not, in any traditional sense, an issue of fairness, which is more habitually concerned with principles of natural justice and procedure. In the context in which it arises in this case the challenge is to the adequacy of the sample of 50 cases selected by the assessors. In my judgment this is an area where the High Court will start from the proposition that since it involves the exercise of medical judgment, which the experts are best placed to exercise, the Court will be loathe to second-guess that judgment in the absence of some clear and material error.

[25]As to the facts these are set out in the Assessment Report. The selection exercise was conducted by the assessment team itself. It is plain from the qualifications of the team that they were experienced. The team leader had conducted over 40 assessments before this one. In an ideal scenario a sample of 50 cases would be chosen with batches of 25 cases being taken from each of two different sources. However, this was not possible in the present case. According to the report (cf paragraphs 1.2, 1.3 and 2.4) in relation to sampling the team took the following decisions. First, that the Appellant should be assessed in the areas of emergency and acute medicine since these were the areas in which he had worked “most recently”. Secondly, that the two hospitals to obtain case records from were therefore Kettering and Chesterfield because these were the hospitals that the Appellant had most recently worked in. Thirdly, in relation to Kettering (where he had worked in stroke and acute geriatric medicine) only one out of the three third parties contacted by the team was available for interview. Fourthly, the Kettering records department was only able to identify one patient record where the Appellant was involved. Fifthly, the team was able to interview two consultants at Kettering and perform a site visit but generally “information from Kettering was inadequate for us to come to any firm conclusion regarding his performance there”. Sixthly, in contrast to Kettering, Chesterfield was able to provide comprehensive records relating to the Appellants performance as a middle grade doctor in Emergency Medicine. It is also evident, again as the assessors recorded, that the evidence available from postings prior to these “recent” ones was not productive. In particular since an earlier FPP hearing in 2010 the Appellant had experienced problems leading to an early termination in 3 locum postings at Kettering, in Gloucester and in Derby. It is also evident from the record of proceedings that the assessors explained to the Appellant that they had not been able to obtain records from Kettering (cf Report paragraph 5.7.3). The assessors had explained the position to the Appellant and he had not objected. So far as the FPP was concerned they heard oral evidence from the assessors as to the selection process, the results of the analysis and the reliability of these results. The FPP examined the sample evidence for themselves, and they were perfectly entitled to treat the assessors’ evidence as admissible and probative.

[26]In my judgment it is not possible to identify errors in this approach. The assessors had a clear discretion as to the evidence that they, as a group, considered to be relevant for the purposes of the assessment. In relation to the sample they focussed upon(i) the work the Appellant had personally undertaken and

(ii) his “recent” experience. At the outset they actively sought out the best evidence (50 samples from between two sources). But this was not available so they obtained the next best evidence which was 50 samples from a single, recent source. There can be no conceivable criticism of the assessors for rejecting Kettering.

[27]The FPP as the ultimate decision making body also has a discretion as to the selection of the evidence that it treats as admissible and persuasive. In this case it plainly exercised an independent judgment as to the evidence in the Assessment Report relating to the Chesterfield samples. There can be no suggestion that the FPP simply adopted the assessors’ conclusions slavishly without forming its own judgment about the conclusions. What one is left with is two different groups of medical experts having concluded that it was reasonable to draw inferences from a sample of 50 case studies, with the second group (the FPP) having heard oral expert evidence about the case studies and having had the chance to hear the assessment team questioned about, not only the methodology of collection, but also the inferences and conclusions to be drawn therefrom.

[28]Certain specific criticisms were made in the course of oral arguments about the Chesterfield samples. But they are not sustainable. I deal with them briefly. It was argued that it was unfair because the sample was taken at the end of two weeks from a locum posting. It was said that locum postings are very stressful and difficult and that to take a sample after only two weeks was unfair as the Appellant might not have had time properly to acclimatise. As to this, the vast majority of the Appellant’s prior postings had been as a locum. And a reasonably competent locum would have found his feet after two weeks. It is accordingly hardly surprising that the sampling should cover this sort of work. Secondly, it is said that the assessors should have gone back further in time beyond Kettering to find another comparator for Chesterfield. But the assessors were plainly correct to seek up to date or “recent” information which would be most proximate in time to their own evaluation and, as already noted, there were real problems with the earlier evidence. It was also argued that it was unfair to choose a sample of the Appellant’s work performed by him at a time when he was not supervised. However, on the facts it transpires that he was supervised and there was nothing in this point.

[29]Most fundamentally, the choice of sample and the conclusions drawn as to its adequacy were quintessentially matters of clinical judgment. To be admissible and probative a sampling exercise does not of course have to be perfect. It has to be the best it can be and no doubt at least meet a basic threshold of relevance. A less than optimal sample might still generate worthwhile results. It will then be for the assessors to draw sensible inferences, taking into account limitations in the evidence. Plainly, if a sample is less than perfect the inferences drawn may be subject to caveat or proviso. But that does not mean that the evidence is worthless. In this regard the samples were moreover only one part of the evidence. They were part of the mix and the assessors were entitled to place them in the evidential balance and form views, as was the FPP.

[30]Finally, I should note that in comparable cases which have come before the High Court the Court has indicated approval of the sorts of decisions taken by the assessors in this case. For instance in Holton v GMC

[2006] EWHC 2960 (Admin)

the Court observed that the appropriate standard for measurement was that for which the doctor in issue “had been trained” (ibid paragraph [70]) and that “to which he was appointed and the work he was carrying out” (ibid). Deficiency was “…to be judged against the standard of his professional work that is reasonably to be expected of the practitioner” and as to the “standard applicable to that post in that speciality”. This supports the assessors’ conclusion that it was sensible to find samples which reflected the Appellant’s actual work, and of course that the more recent the better.

[31]In conclusion this ground of appeal fails.

Analysis – Ground 2: Sanction/the choice between suspension and conditions

[32]The issue here is a narrow one. The FPP did not consider that erasure was proportionate. Nor did it consider that the imposition of no sanction at all was appropriate. There is no challenge to either of these conclusions from the Appellant. The FPP considered therefore that some in-between sanction was necessary.

[33]In assessing the extent of the FPP’s margin of appreciation in respect of sanction it is appropriate to start by setting out some generic considerations and then some factors more specific to the facts of this case.

[34]First, as to generic considerations. The starting point has to be public safety. Many other considerations will play a part in the FPP’s assessment but they are not equal. Public safety is the “main” consideration. This is explicitly set out in section 1(1A) of the Medical Act 1983 which states that:

“The main objective of the General Council in exercising their functions is to protect, promote and maintain the health and safety of the public.”

[35]It follows that once the FPP concludes that there is some material, non-trivial, risk to the public then that is a factor of great weight. Other factors will play a part, including the interests of the doctor. There is a clear public interest in ensuring that in an overworked NHS all medical staff are deployed and that the investment made in such staff is not wasted. Indeed this was a point made to the FPP in the medical evidence in this case. However, that is not a trumping consideration. The submissions made by the Appellant in this case that the FPP failed to take his own professional interests into sufficient consideration must be viewed in this light. Translated into principle, in my view, the FPP is entitled to adopt a precautionary and cautious approach to remedy where any non-trivial issue as to public safety arises and this will serve to confer upon them a broad margin of discretion. The High Court retains a full supervisory function but, as has been emphasised in many cases, it may well be sparingly exercised.

[36]Secondly, and consistent with the first point, in Raschid v GMC

[2007] EWCA Civ 46

(per Lord Justice Laws) the Court of Appeal identified two strands of principle emanating from the prior Privy Council jurisprudence, which it considered should still be followed:

“16. In these circumstances it seems to me to be clear that we should follow the guidance given in the cases decided before the change in the appeal system effected on 1 April 2003. First, the Privy Council is of course a source of high authority; but secondly, we are in any event considering an effectively identical statutory regime. As it seems to me there are in particular two strands in the relevant learning before 1 April 2003. One differentiates the function of the Panel or committee in imposing sanctions from that of a court imposing retributive punishment. The other emphasises the special expertise of the Panel or committee to make the required judgment.”

[37]The Court then went on to emphasise that the FPP was not concerned with punishment and that therefore matters prayed in aid by way of mitigation were not especially persuasive (ibid paragraph [17]). Further, that issues relating to reputation or the standing of the profession (especially in cases of misconduct) were important (ibid paragraph [18]). In paragraph [20]

Lord Justice Laws stated:

“20. These strands in the learning then, as it seems to me, constitute the essential approach to be applied by the High Court on a section 40 appeal. The approach they commend does not emasculate the High Court’s role in section 40 appeals: the High Court will correct material errors of fact and of course of law and it will exercise a judgment, though distinctly and firmly a secondary judgment, as to the application of the principles to the facts of the case.”

[38]With specific regard to sanctions the Court of Appeal looked askance at attempts by the High Court to come close to “an exercise in re-sentencing” (ibid paragraph [21]).

[39]The FPP has guidance on the issue of sanctions. To assist the GMC has provided guidance in the form of the Indicative Sanctions Guidance (last revised in March 2012). These make clear that the purpose of imposing a sanction includes:(a) the protection of patients;

(b) maintenance of public confidence in the profession; and

(c) declaring and upholding proper standards of conduct and behaviour. The sanction should not be punitive. At the sanctions stage there are four possible outcomes: No action; the imposition of conditions; a suspension of up to 12 months; and erasure of the doctor’s name from the register.

[40]Turning now to more specific considerations relevant to this case. There is no question but that the task of the FPP was to address the issue of sanction for itself. It could not delegate the task to the assessors and, by the same token, it was clearly not bound to accept the evidence or the recommendations of any of the individual experts who gave evidence before it. Any suggestions that it was in some way bound to accept the evidence of one expert over another would (absent some compelling evidence of perversity) be misconceived. In the present case the FPP had before it a range of experts who gave evidence on different aspects of the case. Some experts gave evidence on health matters; others on performance. The assessors in the Assessment Report addressed only performance not health. The recommendations of any one expert, based on only part of the evidence, whilst useful and valuable clearly did not and could not serve to oust the judgment call that the FPP had to take for itself. In its report the FPP expressed a view about the credibility of each of the experts before it. It then made clear which expert’s evidence it placed most weight upon. It is true that this was done relatively succinctly. The Appellant criticised the FPP for not setting out in detail which parts of which expert’s evidence it relied upon and which it did not. In my judgment this criticism is not valid. There is no need to include a blow by blow, forensic analysis of the evidence. It suffices for the FPP to express a view about weight and credibility of witnesses and then to set out or refer briefly to the evidence relied upon.

[41]In relation to the factors which the FPP did take into account these are set out fully in its determination and covered the full range of issues before the Panel. It is not possible to identify any material omissions or errors. The FPP started by emphasising its primary role in public protection. It then set out a careful synthesis of the facts and matters relevant to whether it should impose conditions upon registration or suspension. It decided in favour of the latter. The key matters which led it to choose the option of suspension, and not the imposition of conditions, were the oral evidence of certain medical experts to the effect that the Appellant had a “serious mental illness” and that residual symptoms remained. The FPP was swayed by the medical evidence which linked the Appellant’s mental illness to problems associated with the exercise of good medical judgment. The FPP was also swayed by evidence which suggested that patient safety was at risk of being compromised. It also took account of medical evidence from Dr Denman that in her view the Appellant needed a complete break. There was admittedly some ambiguity about this evidence but the FPP construed it as supporting its view that as of the date of the FPP determination the Appellant was not fit to return to work, and they were entitled to form this view having witnessed her giving evidence. And the FPP was also entitled to form the view that the Appellant lacked insight into his condition and the impact that this might exert upon his work. These concerns were of course compounded by the FPP’s acceptance of the conclusion as to the Appellant’s deficient performance. When health and performance problems were combined the FPP had no doubt but that suspension was appropriate.

[42]In these circumstances the decision of the FPP fell four square within the centre of its area of expertise. It is in my judgment not credible that the High Court should interfere in that decision.

Conclusion

[43]For these reasons this appeal fails.