Ali v the General Medical Council. [2017] EWHC 741 (Admin)

Case No CO/5142/2016[2017] EWHC 741 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 19 January 2017
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE FRASER
Between
ALIAppellantv
Between
THE GENERAL MEDICAL COUNCIL.Respondent
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedTrading as DTI8th Floor, 165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
The Applicant appeared in person for in personMr R Dunlop (instructed by The General Medical Council) appeared for Respondent
J U D G M E N T (Approved)
[1]MR JUSTICE FRASER: This is an appeal brought by Dr Ali against the General Medical Council arising out of a decision by the disciplinary process of that body. It is a statutory appeal, and it is governed by the provisions of CPR 52. It relates to a decision by the General Medical Council or, more accurately, what is called the Medical Practitioners Tribunal or MPT, which Dr Ali seeks to challenge.[2]That decision imposed conditions on Dr Ali's registration and I am just going to explain what those conditions are. These are set out in the decision of the MPT at paragraph 37.[3]The Tribunal imposed conditions on Dr Ali's registration for a period of 12 months. Those conditions were:(1) Before 30 June 2017 you must: (a) submit to comply with an assessment of your performance. (b) having submitted to the above assessment, comply with all requirements in respect of that assessment.(2) You must notify the GMC within seven calendar days of the date these conditions become effective: (a) of the details of your current post, including your job title, job location and responsible officer (or their nominated deputy) information. (b) of the contact details of our employer and/or contracting body, including your direct line manager. (c) of any organisation where you have practising privileges and/or admitting rights. (d) of any training programmes you are in. (e) of any contact details of any locum agency you are registered with. You must notify the GMC: (a) of any post you accept, before starting it. (b) if any formal disciplinary proceedings against you are started by your employer and/or contracting body, within seven days of being formally notified of such proceedings. (c) if you apply for a post outside the UK. 4. You must allow the GMC to exchange information with your employer and/or any contracting body for which you provide medical services. 5. You must only work in NHS posts at a level no higher than ST1/ST2.a. A. You must be closely supervised in all of his[sic] posts by a clinical supervisor, as defined in the Glossary for undertakings and conditions. Your clinical supervisor must be approved by your responsible officer (or their nominated deputy).b. B. You must not start/restart work until your responsible officer (or their nominated deputy) has approved your clinical supervisor.c. C. You must seek a report from your supervisor(s) for consideration by this Tribunal prior to any review hearing by this Tribunal. 7. You must not work in any locum post or fixed term contract of less than 12 weeks. 8. You must inform the following persons of the conditions listed at [1] to [7]: (a) your employer and/or contracting body. (b) your responsible officer (or their nominated deputy). (c) your immediate line manager at your place of work, at least one working day before starting work (for current and new posts including locum posts). (d) any prospective employer and/or contracting body, at the time of application. (e) the responsible officer of any organisation where you have, or have applied for, practising privileges and/or admitting rights, at the time of application. (f) any locum agency or out-of-hours service you are registered with."[4]The background to the situation which led to those conditions being imposed is as follows, and I am going to deal with this relatively briefly:[5]Dr Ali was employed by the University Hospital's Birmingham NHS Foundation Trust from 19 August 2013, on a two year fixed term contract as junior specialist doctor.[6]He was initially working in the team that deals with trauma and orthopaedic surgery. Concerns were raised by his colleagues about the standard of his work and his conduct.[7]He met the clinical service lead of that department in October 2013, and he was given notification of those concerns and the action required of him. In early 2014 there were some complaints made about him and a formal investigation was implemented.[8]I should say in Dr Ali's defence, he rejects those concerns and indeed has presented to me today a portfolio of assessments done by other doctors of him which demonstrate, on their face, an acceptance of the quality of his work.[9]The theme which underlies this appeal is that the "big hospital", as Dr Ali puts it, or namely, the powerful people within that NHS Trust, were effectively making vexatious criticisms of his clinical ability.[10]However, putting that to one side for the moment, the Trust raised those concerns formally with him and indeed, instead of going through a formal disciplinary hearing, Dr Ali accepted a final written warning for his conduct in October 2014. He was relocated to the urology department and a personal development plan for his clinical performance was put in place. That did not alleviate the situation because, within a short period of time, further concerns were raised in that department about his work, and he was subsequently excluded from the Trust.[11]An investigation took place which resulted in a report being prepared in relation to both his conduct and performance in that second department. The conclusion that was reached by the team that investigated the concerns raised by the urology department was that there was a case for Dr Ali to answer.[12]A conduct hearing took place on 22 December 2015, which Dr Ali did not attend. At that hearing, allegations that had been made against him were upheld, but he was at that point no longer employed by the Trust.[13]The Trust reported their concerns to the GMC in a letter dated 6 January 2016, and the GMC opened an investigation into his fitness to practise as they were bound to do. A hearing then took place before what is called an Interim Orders Tribunal, or IOT, on 24 February 2016.[14]I am going to return to the detailed rules and guidance that is provided as part of the regime by which the GMC regulates the medical profession later in this judgment, but the IOT imposed an interim order of conditions on his registration which required, amongst other things, that he be closely supervised in his clinical work.[15]In a letter dated 7 April 2016, the GMC wrote to the appellant telling him that an assistant registrar had reviewed the matter and directing that he undergo an assessment of his professional performance. That is called a "Performance Assessment" and it is identified in some of the documents by "PA". The letter informed Dr Ali that if he did not agree to complete an assessment, or did not reply to that letter he could be referred to an MPT, or Medical Practitioners' Tribunal, to consider his non-compliance.[16]Cutting through the events of the next 6 months or so very shortly, Dr Ali has not undergone a performance assessment. He accepts he has not gone through the performance assessment. He has explained why that is, and I will come on to those reasons in more detail later in this judgment, but the fundamental issue is that having been directed by the GMC that he had to undergo a performance assessment, he did not do so.[17]As a result of that non-compliance, the GMC referred the matter to an MPT, at which Dr Ali represented himself. It is as a result of that hearing that the conditions to which I referred at the beginning of this judgment were imposed upon him. He seeks to appeal in respect of that decision, and his grounds of appeal I will identify briefly now.[18]Dr Ali has represented himself today. He has explained the reasons for that as follows: he said that whenever he engages professionals to provide professional services to him they effectively fail in their commitments to him. He identified to me both a solicitor and a barrister whom he said he had instructed to act for him, and whom he had paid to act for him on an immigration matter, and he said that they both failed in their duties to him.[19]He believes that this failure is not a coincidence. Part of his objection to the performance assessment, and part of his explanation for the failure of his legal professional representatives, is that he says he is on one side of a dispute with a very large hospital on the other side, namely the Birmingham NHS Foundation Trust Hospital. He says that because of this, whenever the "big hospital" discovers that he is being represented by professionals, they influence those advisers against him and that is why both the solicitor and barrister, whom he instructed, failed in their commitments to him.[20]He has also identified to me in the course of his submissions on the substantive appeal that he believes the performance assessment would be unfairly weighted against him because of the involvement on the other side of the dispute of the large and powerful hospital.[21]I should say that those submissions not only demonstrate a degree of unrealism on his part but they also impugn the professionalism, both of the doctors ordered to perform, and who would be involved in, the performance assessment, and also the professional ethics of the legal representatives whom Dr Ali has instructed before.[22]I should, however, also say that he has presented to me all of his arguments and submissions in a relatively coherent fashion and I am entirely content that even though he has represented himself before me today, he has drawn to my attention all the points that could possibly be said to arise in his favour on this appeal. The fact that he has represented himself does not seem to me necessarily to have damaged his case in any appreciable respect.[23]Turning to the grounds which he has raised, which I will deal with first, before I turn on to the principles, he effectively has 7 separate grounds as to why he says his appeal should succeed.[24]I will, however, read out paragraph 3 of what is his skeleton argument, where he says in relation to the decision of the MPT:
"The verdict limps, written by an apparently mighty pen but in a hand restrained by the claws of morbid influence and sordid prejudice. It gives a gesture of thoughtful pretence which mocks fair reason and fine judgment. It is a blatant refusal to accept substantial evidence from the agreed doctor (appellant), with the basis that the Tribunal has not found "good reason" to favour the latter being categorically wrong. Instead, it relies heavily upon rubble of uncorroborated statements, heap of false allegations and hypothetical concerns without weighing their veracity, contextual relevance and implications [...]."
[25]He, in the course of his skeleton argument, makes certain criticisms of the way that the Tribunal went about its business.[26]Turning to, if I may, paragraph 4, he also criticised the GMC representative at the hearing, who is not the same person as Mr Dunlop of counsel who appeared for the GMC today, where at paragraph 4 of his skeleton he says: The GMC representative, belonging to a pre-eminently noble profession, enthusiastically served her client but has sadly humbled her alma mater by showing incompetency in the following basic cornerstones of upright and esteemed advocacy:(a) She exhibits a nigh-obscene appetite for quoting the most questionable unfounded allegations without having first critically appraising them to serve the cause of justice, thus soiling her tongue with slander instead of worthy and intelligent arguments.(b) She has earned opprobrium by misleading the Tribunal and wasted time by not producing any evidence in her submissions. It could only be sump that ignorantly transmitted the stenching fabrications of the corrupt hospital team inherited by the GMC. She clearly needs ingrain with more practise and sincere intention, the honorable values and lofty ideals of her profession."[27]That sort of criticism of a legally qualified representative appearing at a Tribunal is obviously of the most extreme kind. It makes very serious allegations against the person who represented the GMC. Certainly, in terms of all of the papers that I have read in relation to that hearing and everything that I have heard today, there is nothing that remotely comes close to justifying that criticism. It seems to me that Dr Ali has clearly misunderstood not only the duties of an advocate but also what counsel at the hearing was in fact doing in advancing the GMC's case against him.[28]I should also say, having read in some detail on three separate occasions the GMC's decision, which includes a transcript of the submissions made and the dialogue between Dr Ali and the chair that in my judgment those proceedings were conducted entirely properly in every respect.[29]Turning to Dr Ali's grounds, the separate criticisms of what was in fact done fall to be considered in the following way. I am going to re-number them, so they are cogent separately numbered grounds. I will read out exactly as they appear in the skeleton and I will then come on to deal with them separately. The first ground:
“The proceedings did not make an effort to satisfy as to question why the background of the case manifestly contradicts objective evidence of not a single incident of patient harm or negligence in care provision by Dr Ali." The second ground: “The proceedings refused to give credit to the recent certifications of the emergency courses." 30. The third ground: “The proceedings failed to take account of the recent appraisal proving: (a) The satisfactory completion of all the fields of training requirements by the doctor. (b) The discouraging attitude of the supervisors to withhold due credit and the condemnable, derogatory discriminatory harassment.” (a) The satisfactory completion of all the fields of training requirements by the doctor. (b) The discouraging attitude of the supervisors to withhold due credit and the condemnable, derogatory discriminatory harassment.”
The fourth ground:
“The proceedings identified the duties of timeliness and gathering of evidence incumbent on the GMC registrar as the right of the aggrieved doctor but sadly overlooked the negligence of both the principles in its decision." The fifth ground: “The Tribunal misconstrued the discretion of the GMC registrar to requisition performance assessment under the Fitness to Practise Rules 2004 in a temporal fashion. Indeed, a more holistic view which makes it fool-proof is compulsory to draw the right and fair conclusion.”
The sixth ground:
“The Tribunal was given a thorough explanation of the vulnerability of the aggrieved doctor and that a just outcome necessitated a sifting of vexatious allegations from evidence-based malpractice/misconduct on the part of the doctor. However, the Tribunal fails to uphold the binding principle of weighing the valid reasons for the legitimacy of the performance assessment from the perspective of both the parties.”
The seventh ground: “The proceedings failed to save the aggrieved doctor from a lasting damage to career and repute and deny refuge and justice from the forces which had violated all moral, ethical and professional codes."[30]It can therefore be seen that the grounds contain a wide-ranging attack upon the findings of the MPT and its decision and I therefore come, in the face of that wide-ranging attack, both to the content of the decision and indeed the way the decision has been reached. I will set out the principles that apply in this situation and then how the facts should be considered against those principles and what the answer is upon this appeal.[31]Turning to the principles, I am told (and I am sure that this is the case) that there is no previous authority on the approach of a court, specifically, in respect of an appeal of this nature dealing with the directing of conditions on the doctor's registration due to non-compliance. That is because those provisions only came into force on 31 December 2015, and this is the first appeal against such a direction.[32]I will, however, set out what the provisions are and then deal with the general principles that apply in relation to appeals against decisions of the MPT generally. In my judgment those principles apply to an appeal of this nature concerning these new provisions as well.[33]Paragraph 5(A) of schedule 4 to the Medical Act 1983 (“the Act”) provides as follows:
"5A.- (1) The General Council may make rules- (a) Authorising the giving of directions by any of- (i) The Investigation Committee. (ii)[a Medical Practitioners Tribunal] (iii)such other persons as may be specified in the rules, requiring [an assessment of a kind referred to in sub-paragraph (1A)] to be carried out; (b) specifying circumstances in which such an assessment may be carried out otherwise than in accordance with a direction. (1A) The assessments referred to in sub-paragraph (1) are- (a) in the case of a registered person, an assessment of the standard of a person's professional performance [...]."
[34]That plainly gives the GMC the power to order a performance assessment.[35]Sub-paragraphs 3(a) and (b), 3(b), 3(c) and 3(d) all deal with the situation where the registrar is of the opinion that the registered person who is required to submit to an assessment by virtue of this paragraph, has failed to submit to that assessment, or to comply with the requirements that have been imposed. The powers of the registrar are set out as follows:
"(3) If the registrar is of the opinion that a registered person who is required to submit to an assessment by virtue of this paragraph has failed to submit to that assessment or to comply with requirements imposed in respect of the assessment, the Registrar- (a) may refer that matter to the MPTS for them to arrange for it to be considered by a Medical Practitioners Tribunal, and (b) if he does so, must without delay serve on the person concerned a notification of the making of such a referral. [...] (3B)Where a matter is referred to the MPTS under sub-paragraph (3) or (3A), the MPTS must arrange for the matter to be considered by a Medical Practitioners Tribunal. (3C)Where a Medical Practitioners Tribunal, having given a direction by virtue of this paragraph to require a registered person to submit to an assessment, are of the opinion that the person concerned has failed to submit to that assessment or to comply with requirements imposed in respect of that assessment, the Tribunal must consider that matter. (3D)The Medical Practitioners Tribunal, on their consideration of a matter under sub-paragraph (3B) or (3C), may, if they think fit- (a) direct that the person's registration in the register is to be suspended (that is to say, not to have effect) during such period not exceeding twelve months as may be specified in the direction; or (b) direct that the person's registration is to be conditional on the person's compliance, during such period not exceeding three years as may be specified in the direction, with such requirements so specified as the Tribunal think fit to impose for the protection of members of the public or in the person's interests."
Those powers include a reference of the matter to the Medical Practitioners Tribunal. That is what happened in this case.[36]The Act does not specify on what grounds an appeal under paragraph 5(A)(5) of schedule 4 to the Act is to be allowed. As a result of that, CPR Part 52.21.3 applies. That states that:
"The Appeal Court will allow an appeal where the decision of the lower court was (a) wrong or (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court."
[37]Rule 17ZA of the General Medical Council Fitness to Practise Rules Order of Council 2004, to which I will refer as "The Rules", make provision for the order of proceedings at a hearing to consider a non-compliance matter.

(c) (i) and (ii), D, E, F, G, H and I:

"17ZA- Procedure at a non-compliance hearing: (1) [...] (c) the representative for the GMC shall- (i) where the practitioner is present, require the practitioner to confirm his name and GMC reference number. (ii) where the practitioner is not present, require the representative for the GMC to confirm the practitioner's name and GMC reference number; (c) The representative of the GMC shall- (i) inform the Medical Practitioners Tribunal of the background to the case. (ii) direct the attention of the Medical Practitioners Tribunal to any relevant evidence, and may adduce evidence and call witnesses in relation to the question of whether- (aa) the practitioner has failed to submit to, or comply with, an assessment under Schedule 1 or 2; (bb) having submitted to an assessment under Schedule 1, the practitioner has failed to comply with requirements imposed in respect of that assessment; (cc) the practitioner has failed to undertake an assessment of knowledge of English in accordance with Schedule 3 or has undertaken such an assessment but has failed to provide the information requested in accordance with that Schedule; (dd) the practitioner has failed to provide information required from him under section 35A(1A) of the Act; (d) the practitioner may, in response, adduce evidence and call witnesses in relation to any question addressed by the representative for the GMC under sub-paragraph (ii) of paragraph (c); (e) in respect of any question referred to in sub-paragraph (ii) of paragraph (c), the Medical Practitioners Tribunal must consider any evidence referred to in that sub-paragraph d) and announce its finding on that question, and shall give its reasons for that finding; (f) the Medical Practitioners Tribunal may receive further evidence and hear any further submissions from the parties as to its decision whether to make a direction under paragraph 5A(3D) or 5C4) of Schedule 4 to the Act; (g) the Medical Practitioners Tribunal shall consider any evidence and submissions referred to in paragraph (f) and announce its decision (with reasons) as to the making, or otherwise, of a direction referred to in that paragraph; (h) the Medical Practitioners Tribunal shall, before announcing (with reasons) its decision whether or not to impose an order for immediate suspension or immediate conditions on the practitioner's registration, receive and consider any further evidence in that regard from the parties; (i) the Medical Practitioners Tribunal may consider whether to make an order under section 41A of the Act and announce its decision in that regard."
[38]The General Medical Council has provided guidance on non-compliance hearings. Paragraph 15 of that guidance, which is entitled 'Non-compliance Hearings Guidance for Medical Practitioners Tribunals' states, under the heading "Considerations for the Tribunal":
"15.The considerations for a Tribunal assessing non-compliance can be broken into three broad categories, all of which should be satisfied in order to make a finding of non-compliance and before the Tribunal can proceed to consider imposing a sanction. • Was the GMC's direction to provide information or to undergo an assessment reasonable given the circumstances of the case and the evidence available to decision makers(?) • Is there sufficient evidence to show that the doctor has failed to comply with the direction? • Is there evidence to suggest that there was good reason for the doctor's failure to comply (i.e was it unavoidable or otherwise excusable)?"
[39]Under "Reasonable directions", which follows at paragraph 17: "17.The Tribunal must consider whether or not a direction to undergo an assessment or to provide information is reasonable given the particular circumstances of the case".[40]Then at paragraph 18, it says:
"18.In most cases, a reasonable direction: • Will relate either to a direction to provide information or to undergo an assessment as outlined in paragraph 4". • Must have been made in line with the GMC's powers as laid out in the Medical Act 1983 (as amended) and the GMC (Fitness to Practise) Rules 2004. • Is one proportionate to the allegations under investigation,(e.g concerns were sufficiently serious that the GMC was justified in directing a health or performance assessment). • Is one where a doctor's failure or refusal to comply would significantly impair the GMC's ability to investigate concerns and therefore fulfil its statutory objective."
[41]Against "Reasons for non-compliance", it has identified at paragraph 24 some examples of reasons for non-compliance. They are namely that it was unavoidable or otherwise excusable and is in the following terms:
"24.If the Tribunal is satisfied that the doctor has failed to comply, they should consider whether or not there was good reasons for the doctor's failure to comply, i.e it was unavoidable or otherwise excusable because: • for reasons of adverse physical or mental health, a doctor was unable to respond to or comply with a request, even where the request is seen to be reasonable • a doctor has demonstrated that he/she has not received an invitation to undergo an assessment or request for information. • a doctor can demonstrate that he/she is not in possession of the information or documentation requested by the GMC. • a doctor can demonstrate that, for reasons beyond his/her control, he/she was unable to comply with the direction."
[42]That therefore clearly states and sets out the way in which the Tribunal ought to conduct the matter, when it is faced with a situation such as this one.[43]I am going to deal in very short order with the second limb of CPR part 52.21(3)(b), namely that the proceedings would be unjust because of a serious procedural or other irregularity.[44]In my judgment there is nothing in that point whatsoever in Dr Ali's favour. The GMC adopted an entirely fair and procedurally correct approach which was wholly regular. So the only real issue on this appeal, in my judgment, is whether or not the decision was wrong and I am therefore going to deal with that.[45]When the court came to consider other decisions of the MPT, which, as I have said I consider is the principle that should be adopted to these new provisions which have only recently come into force, the court approached the matter in the following way:[46]Firstly, it is not appropriate to add any qualification to the test in CPR Part 52 for example, by requiring that the decision should be "clearly wrong". The authority for that principle is Fatnani and Raschid v GMC [2007] EWCA Civ 46.[47]Secondly, the court should recognise that the purpose of regulatory sanction is not to punish, but is to protect the public and the reputation of the profession. As a result, evidence of purely personal mitigation is likely to be of less significance than in a case concerning retributive punishment. The authority for that principle is also Fatnani.[48]Thirdly, the court should give respect and due weight to the expertise of the MPT to make the required judgment about what is necessary to maintain public confidence and proper standards in the profession. This is derived from both Fatnani as well as Ghosh v General Medical Council [2001] 1 WLR 1915, and Cheatle v General Medical Council [2009] EWHC 645 (Admin).[49]Fourthly, the court will correct material errors of fact and of law. The authority for that principle is Fatnani. However, in relation to errors of primary fact, the court would be reluctant to interfere, especially where a finding is based upon an assessment of credibility of witnesses. The authority for that principle is Southall v GMC [2010] EWCA Civ 407. The court may also draw inferences of fact which it considers justified.[50]Finally, in considering the exercise of the MPT's discretion, the court will exercise a judgment – which is distinctly and firmly, a secondary judgment, again based on Fatnani - taking into account that the MPT's overall value judgment is akin to a jury question as to which there may reasonably be different answers. In other words, the court does not simply substitute its view of the merits for that of the MPT.[51]Turning to the authority of Fatnani, the title of that case in the Weekly Law Reports is Raschid v GMC and Fatnani v GMC [2007] 1 WLR 1460. That is a Court of Appeal case and the main judgment was given by Laws LJ. He stated in considering the principles that should apply at [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."
[52]Prior to April 2003, it was the Privy Council that had jurisdiction to hear appeals from the Professional Conduct's Committee of the GMC, which was necessarily couched in terms of a power to make recommendations to Her Majesty's Council.[53]Going back to [16],

Lord Justice Laws continued:

"Firstly, the Privy Council is of course a source of high authority, and 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 the court imposing retributive punishment. The other emphasises the special expertise of the panel or committee to make the required judgment."
[54]He then goes on to consider both the strands. So far as the second strand is concerned in [8] he states:
"The panel is centrally concerned with the reputational standing of the profession, rather than the punishment of the doctor."
[55]At [21], he said, returning to the decisions of Collins J, which, in that case, was being considered by the Court of Appeal:
"21.Now I may return to the decisions of Collins J. In my judgment the test which he applied, namely whether the decision of the Panel was clearly wrong, is with respect not helpful or adequate, at least unless it is very clearly understood in the context of the two principles or strands, which I have described, which emerge from the Privy Council cases. Although Collins J in both of these cases acknowledged in one way or another the need for a degree of deference to the Panel -- see Raschid paragraph 42, Fatnani paragraph 22 -- still the exercise he undertook came very close, if it did not constitute, an exercise in re-sentencing."
[56]It is clear to me, therefore, that the approach which I have to take is not effectively an exercise in re-sentencing, which is what Collins J had done in those cases, and which was overturned by the Court of Appeal. It is a rather different approach, which is to consider, having looked at all the facts, that I have to give due deference, in matters of clinical judgement and performance analysis, to the views of the MPT.[57]Dr Ali, in his general submissions which underpin his grounds of appeal, states both expressly and impliedly that there is a dispute, or he is “involved in a battle”, with the forces marshalled at the hospital in Birmingham, and that it is in those circumstances that these criticisms of his performance as a doctor have been raised.[58]As Mr Dunlop, who put the case for the GMC with admirable clarity and brevity, made clear, it is in those circumstances even more important that a performance assessment is carried out. A performance assessment would enable the GMC to take an entirely objective view of the competency of Dr Ali as a doctor.[59]If the allegations against him, which included some very serious ones about his safety as a practitioner, are vexatious or unfounded, a performance assessment will demonstrate that to be the case.[60]If, on the other hand, the allegations against him are well founded then the performance assessment would, one would expect, result in that becoming clear to the GMC.[61]The GMC performs an important public function. It is the regulatory body for medical practitioners who are doctors. Defects in the performance of such professionals can, for obvious reasons, have a very powerful impact, not only upon members of the public individually, but also upon the standing of the profession.[62]In those circumstances, it seems to me, ordering a performance assessment was an entirely proportionate response by the GMC to the matters which had been referred to it by the Trust.[63]I am going to deal with each of the grounds set out in the skeleton argument but, in very short order, I can say that none of them in my view go directly to constitute even an arguable challenge to the way that the GMC/MPT decision was reached, or indeed the contents of the decision.[64]It is said in Ground 1 that the proceedings did not make an effort effectively to consider the objective evidence. I consider that is wholly unarguable. It is plainly not the case and it is not made out on the face of the decision itself.[65]The second ground is that proceedings refused to give credit to Dr Ali's recent certifications. That was one part only of the evidence that was available to it, but the GMC/MPT simply decided to have a performance assessment carried out. That was an entirely sensible course of action, notwithstanding Dr Ali's recent certifications and emergency courses that he had done.[66]The same point applies to ground 3. The recent appraisals, or the detail of the recent appraisals, was one of the points that was in front of the panel. They were entitled to give it due weight and they did so. They were not bound to reach any particular conclusion due to those appraisals.[67]There is a technical point in respect of ground 4. It is said that the proceedings effectively identified the duty of timeliness and gathering of evidence incumbent on the GMC registrar and thereby overlooked one of the rules, namely rule 7(7)(1) Investigation of Allegations which states:
"7(7)(1) As soon as it is reasonably practicable after referral of an allegation for consideration under rule (8), the registrar shall write to the practitioner," inviting him to respond."
[68]However, both rule (4) and rule 7(3), when they are read correctly and together make it clear that in fact on some matters, such as this one, the registrar is permitted to act as he did. Rule 7(2) states:
"7(2) The registrar shall carry out any investigations, whether or not any have been carried out under rule 4(4), as in his opinion are appropriate to the consideration of the allegation under rule 8."
[69]It is therefore obviously the case that the registrar had the power to act as he did and was justified, in my judgment, in acting as he did.[70]The fifth ground, is effectively a more direct challenge simply to the conclusion of the panel. It says, and I summarise, or I read out only part of the ground:
"A more holistic view, which makes it foolproof, is compulsory to draw the right and fair conclusion."
[71]I simply do not accept that the discretion which is available to the panel can only possibly be exercised in one direction, which is effectively what this ground argues. It is said by Dr Ali that the rules "Must not be twisted where the respective author leaves it to common sense."[72]In my judgment, the rules were not twisted, they were properly applied and that ground must also fail.[73]I now turn to ground 6 and ground 7. In ground 6, Dr Ali states that the Tribunal was given a thorough explanation of his vulnerability and that a just outcome necessitated a sifting of the vexatious allegations against him from evidence-based malpractice or misconduct.[74]That ground, in my judgment, fails to pay attention to the overarching obligation of GMC to ensure that doctors are fit to practise. The GMC did not find that Dr Ali was unfit to practise. What Dr Ali was required to do by the GMC was to undergo a performance assessment. It is as a result of doing that that the GMC would have been able to arrive at an entirely just outcome, having analysed his competency as a doctor. It cannot be said that by ordering him to undergo a performance assessment they automatically accepted the veracity of the allegations against him. Indeed, rather to the contrary.[75]Finally, the final ground is that the proceedings failed to save Dr Ali from lasting damage to his career. The authorities that I have just identified and the whole approach of the regulatory process is that the interests of the individuals are, to a certain extent, subordinated to the wider interests of the profession itself.[76]All the different professions have regulators in one guise or another. Those regulators have a duty to ensure that members of that profession are properly regulated and are of a particular standard. This applies to all the professions. In this case, in a way, the most important profession for the individual health of individuals is this one. Mistakes by doctors can and regrettably sometimes do lead to very serious consequences; the regulators have a duty to uphold the standards of the profession, for very obvious reasons.[77]Here the GMC was attempting to do that by imposing a performance assessment on Dr Ali. By refusing to undergo that performance assessment, he rendered it impossible for the GMC to obtain the objective analysis of his competence which it considered that it required in order properly to consider his fitness to practise.[78]I reject the suggestion that the outcome of that performance assessment was weighted against Dr Ali, either for reasons of bias or otherwise. To make a finding of that nature would be to criticise the professionalism of those more senior doctors involved in the performance assessment; and, notwithstanding that he was ranged on one side of a dispute against the Trust Hospital on the other, I do not consider that submission is one that is well founded or justified in any respect.[79]In all those circumstances, having dismissed the procedural irregularity point earlier in this judgment, it seems to me that the correct outcome of this appeal is also to dismiss the submission that the decision was wrong.[80]When it is correctly considered against the authorities which I have identified, I suggest that the proportionate judgment, which was the requirement of the performance assessment, was entirely justified in all the circumstances and in that respect the appeal fails.

Cited in 2 later judgments