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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Fatnani & Anor v General Medical Council [2007] EWCA Civ 46 (15 January 2007)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2007/46.html
Cite as: [2007] 1 WLR 1460, [2007] ICR 811, [2007] WLR 1460, [2007] EWCA Civ 46

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Neutral Citation Number: [2007] EWCA Civ 46
(1) C1/2006/1512, (2) C1/2006/1052

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(MR JUSTICE COLLINS)

Royal Courts of Justice
Strand
London, WC2
15 January 2007

B e f o r e :

LORD JUSTICE CHADWICK
LORD JUSTICE LAWS
and
SIR PETER GIBSON

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(1) FATNANI
(2) RASCHID CLAIMANT/RESPONDENT
- v -
GENERAL MEDICAL COUNCIL DEFENDANT/APPELLANT

____________________

(DAR Transcript of
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____________________

MR R ENGLEHART QC and MR I HARE (instructed by the General Medical Council) appeared on behalf of the Appellant
(1) MR J HARDY (instructed by Stake Partnership) appeared on behalf of the Respondent
(2) THE RESPONDENT APPEARED IN PERSON.

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

  1. LORD JUSTICE LAWS: These are two appeals brought by the General Medical Council against decisions of Collins J given in the Administrative Court. They are listed together pursuant to a direction given by Ward LJ on 31 July 2006 when he granted permission to appeal in one of the two, namely Fatnani. Permission to appeal in the other, Raschid, had been given earlier by Mummery LJ on 12 June 2006. On 19 December 2006 I refused an application by Dr Raschid to rescind Ward LJ's order and direct that his case be heard separately from Fatnani. In each case Collins J was dealing with a statutory appeal to the High Court brought under section 40 of the Medical Act 1983 as amended against a decision of the Fitness to Practise Panel of the GMC. Proceedings had been taken before the Panel against the two medical practitioners, who are respondents to these appeals, Dr Raschid and Dr Fatnani, for what I may in short call disciplinary offences.

  2. The facts relied on against the doctors (which, as I shall explain, differ greatly as between the two cases) were admitted or found proved. The Panel accordingly had to consider what sanction to impose. In Dr Fatnani's case they directed that the respondent's name should be erased from the Medical Register. In Dr Raschid's case they directed that Dr Raschid's registration be suspended for 12 months and that there should be a resumed hearing or a review at the end of that period. On appeal to the High Court the basis of each respondent's liability was either not contested or upheld. In each case the live issue for our purposes, which was determined by Collins J, concerned the sanctions which the Panel had imposed. In Fatnani in his judgment given on 12 June 2006 Collins J quashed the order for erasure and substituted a 12-month suspension of Dr Fatnani's registration. In Raschid in his judgment given on 30 March 2006 the judge quashed the order for a 12-month suspension and substituted it with an order for suspension for one month. He also revoked the order for a resumed hearing or a review. In each case Collins J directed himself that the test that he had to apply in deciding whether to overturn the sanction imposed by the Fitness to Practise Panel was whether the Panel's decision was "clearly wrong" -- see the Raschid judgment, paragraph 42, and the Fatnani judgment, paragraph 12.

  3. The issue for this court in both appeals is as to the proper reach of the High Court's discretion on a section 40 appeal to vary a sanction imposed upon a doctor by the Panel. The issue is of some importance because the High Court's jurisdiction under section 40 dates only from 1 April 2003. Before that appeals against decisions of the Fitness to Practise Panel, then known as the Professional Conduct Committee, lay to the Privy Council. There is case law in the Privy Council, but this is the first occasion on which this court has been asked to consider what the approach of the High Court should be to its jurisdiction conferred on 1 April 2003. Granting permission to appeal in Raschid, Mummery LJ said this:

    "This is a second appeal which raises important points of principle on the approach by the High Court to appeals from decisions of the General Medical Council (Fitness to Practise Panel) on sanctions to be imposed for serious professional misconduct."

    That was echoed by Ward LJ granting permission in Fatnani.

  4. It is convenient next to describe the facts of the two cases. I will take Raschid first. Dr Raschid admitted all the primary facts alleged. It is appropriate to set out the Panel's treatment of the facts in their findings given on 27 July 2005, the third day of the hearing before them:

    "The Panel has heard that between 28 July 2003 and 18 February 2004 you were employed as a Locum Consultant Psychiatrist by the Buckinghamshire Mental Health NHS Trust based at the Tindal Centre in Aylesbury, Buckinghamshire. On 21 December 2003, Miss R, a young lady with a history of psychiatric problems, was admitted to the Tindal Centre under your care, and you remained responsible for her care over the next few weeks.
    "Following Miss R's discharge home on 3 February 2004, you were telephoned at home by Miss R's mother, who was concerned that her daughter might fail to comply with the agreed treatment. On 9 February 2004 you undertook a consultation with Miss R at the Tindal Centre. You have admitted to the Panel that during this consultation, you told Miss R that she was attractive, that she would make a good companion, and that 'you could live with me'. You then went on to touch Miss R down the right side of her face with one hand, and kissed her on the head.
    "You admitted at the outset of the hearing that your actions in the consultation on 9 February 2004 were inappropriate, unprofessional, and not in the best interests of Miss R. You explained in your evidence that you were trying to help Miss R by being kind to her, and that the practice of a patient living with his/her therapist occasionally happens in psychotherapy. However, the Panel does not accept your explanation, particularly as you have also admitted that you told Miss R not to repeat your comments to her mother. You have offered no explanation for touching and kissing Miss R other than that you were 'momentarily distracted' by her. Miss R was[sic] vulnerable patient whose medical records contained references to alleged sexual abuse, and you should have been aware of this.
    "Following that consultation, you called Miss R's mobile telephone on several occasions between 11 and 14 February 2004. You suggested meeting her at a hotel for her next consultation. You have told the Panel you believed that Miss R would benefit from a different environment to that of the hospital. During the same series of telephone calls you have admitted asking Miss R to be your Valentine, although you have told the Panel that this was meant as a joke. You also told her that had the telephone lines to the florist not been busy you would have sent flowers for Valentine's Day. You immediately said that it was just as well that the lines had been busy as this behaviour would not have been appropriate, and it would have alarmed the family if flowers had arrived from you. You have subsequently admitted to the Panel that these actions were inappropriate and unprofessional. The Panel has also found that they were not in Miss R's best interests.
    "The family complained to your employing Trust on 16 February 2004, and you met Dr Sheena Dykes (acting Medical Director) the next day, when you were relieved of your duties and responsibility for Miss R's psychiatric care was transferred to another consultant. Dr Dykes advised and instructed you not to have any further contact with Miss R or her family. Nevertheless you rang Miss R's family home and spoke to her grandmother, and at a later date also sent a card to the grandmother. In that card you wrote, 'I'm sending [Miss R's] art book'. Subsequently, under separate cover, you sent an art book to Miss R's grandmother. Although you have told the Panel that you did this because you felt morally obliged to uphold an earlier promise to Miss R, the Panel found that your actions with regard to these matters was inappropriate, unprofessional and not in her best interests."
  5. These facts were said to constitute serious professional misconduct. Dr Raschid did not accept that they did, but the Panel found the charge made out. Dr Raschid's appeal against that finding was dismissed by Collins J. His conclusion upon that question is not appealed to this court by any cross-notice from Dr Raschid. In the circumstances section 36 of the Medical Act applied to the Panel's task. In the form in which it was then effective it reads as follows:

    "(1) Where a fully registered person - (a) is found by the Professional Conduct Committee to have been convicted in the British Islands of a criminal offence or have been convicted elsewhere of an offence which, if committed in England and Wales, would constitute a criminal offence, whether while so registered or not; or (b) is judged by the Professional Conduct Committee to have been guilty of serious professional misconduct, whether while so registered or not; the Committee may, if they think fit direct - (i) that his name shall be erased from the register; (ii) that his registration in the register shall be suspended (that is to say, shall not have effect) during such period not exceeding twelve months as may be specified in the direction; or (iii) that his registration shall be conditional on his compliance, during such period not exceeding three years as may be specified in the direction, with such requirement so specified as the Committee think fit to impose for the protection of members of the public or in his interests."

  6. It is to be noted that, as Mr Englehart for the appellant submitted, the three forms of sanction specified at section 36(1) are mutually exclusive. It is convenient also to point out that whereas the condition described in section 36(1)(a) applies in Dr Fatnani's case, it is section 36(1)(b) that applies in Dr Raschid's case. In fact the current provision conferring the discretionary power to impose sanctions on the Panel is section 35D; but section 36 in the form in which I have read it had effect in these cases by force of certain transitional statutory provisions -- see the Medical Act 1983 (Amendment) Order 2002 Schedule 2 paragraph 10. In considering what sanction to impose under section 36 the Panel in Dr Raschid's case indicated that they had "balanced the interests of the patients and of the public against your own". They said:

    "The Panel first considered whether to conclude this case by taking no action or by issuing a reprimand. The Panel has decided, in view of the serious nature of its findings, that it is necessary to take action against your registration. The findings against you represent a serious breach of the principles of Good Medical Practice (May 2001), which states (paragraph 20) that 'you must not allow your personal relationships to undermine the trust which patients place in you. In particular, you must not use your professional position to establish or pursue ... [an] improper emotional relationship with a patient or someone close to them'. For these reasons, the Panel have concluded that a reprimand would be wholly insufficient.
    "The Panel then went on to consider whether to impose conditions on your registration. You proposed a condition that you would work solely in old-age psychiatry, and therefore not come into contact with young female patients. However, the Panel considers that the imposition of conditions would not be sufficient to protect patients and the public interest.
    "The Panel then went on to consider whether it would be sufficient to direct that your registration be suspended, or whether it is necessary to direct the erasure of your name from the Register. The Panel considered that this was a serious instance of misconduct for which a lesser sanction was not appropriate but that in the circumstances of this case, it was not incompatible with your remaining a registered medical practitioner. It has considered that in order to protect patients, maintain public confidence in the profession, and uphold proper standards of conduct, it is necessary and proportionate to suspend your registration.
    "The Panel has decided that the appropriate period of suspension should be twelve months to allow you to address the deficiencies in your conduct that have been identified.
    "The Panel then went on to consider whether to review your case at a meeting to be held before the end of the period of suspension. Taking into account the circumstances of your case, the Panel considers it necessary to do so. You will be informed of the date of that meeting which you will be expected to attend. Shortly before the review hearing you will be asked to ^^ the General Medical Council with the names and addresses of professional colleagues and persons of standing to whom the Council may apply for information as to your conduct since this hearing."

  7. The provision for a review was on the Panel's approach important, for it would provide an opportunity, in light of the passage of time, to decide whether to impose conditions on Dr Raschid's future practice. Then followed Dr Raschid's appeal to Collins J. It is convenient to deal with that alongside Collins J's judgment in the Fatnani case, to whose facts I now turn.

  8. Here is the Panel's account of the facts in Dr Fatnani's case, given in the course of their determination on 20 September 2005, the second day of the hearing:

    "The Panel has heard that on 20 April 2004 you were convicted under your married name of Devi Schahhou at Southwark Crown Court, after a trial lasting four months, of four counts of assisting another to retain or control benefit of criminal conduct. On 14 June 2004 you were sentenced to six months' imprisonment on each count to run concurrently, all suspended for two years.
    "You admitted the convictions at the outset of this hearing. The Panel has therefore found the convictions proved.
    "The Panel has heard that at the trial, your daughter, Joyti De-Laurey, was convicted of fraudulently obtaining large sums of money, in excess of £4 million, over a period of time. The events of which you were convicted took place between January and May 2002 and related, at your daughter's instigation, to the opening of two bank accounts in your name with the Bank of Cyprus, the purchase of a £600,000 villa in Cyprus in your name and the redemption of the mortgage on your home in North London.
    "In his summing-up on 14 April 2004, His Honour Judge Elwen advised the jury as to the essence of the offence. He explained to them that:
    'You know something if you discover it for yourself or are told about it by someone with first-hand knowledge. Suspicion is a plain word in common usage and should be given its ordinary meaning. It denotes an inkling, the imagining of something without evidence or on slender evidence. If the prosecution has not made you sure of those two things in relation to… Dr Schahhou on any one or more of these counts, that is an end of the matter and you would return verdicts of not guilty on the relevant count or counts.'
    "You did not give evidence at your trial, as was your right, but you maintained through written statements that you were unaware of your daughter's fraudulent activities. The jury found you guilty on four counts in the indictment against you, in that you were concerned in an arrangement whereby your daughter was able to retain or control the proceeds of her criminal conduct while you knew, or suspected, that she was engaging in or benefiting from criminal conduct."

  9. We should add, as Collins J noted at the start of his judgment, that Dr Fatnani is 70 years of age and there has never been any complaint about the standard of her medical care. In considering sanction, the Panel in this case first observed as follows:

    "The General Medical Council's guidance Good Medical Practice (May 2001) states that 'patients must be able to trust doctors with their lives and well-being' and that a doctor must be 'honest and trustworthy'. The guidance is also very clear on the issue of probity, when it states that doctors 'must be honest in financial and commercial dealings with employers, insurers and other organisations or individuals.'"

    Then a little later, this:

    "The Panel is satisfied that it is not sufficient to conclude this case with a reprimand. The Panel also determined that, given the serious nature of your conviction, the imposition of conditions on your registration would not be appropriate or proportionate.
    "The Panel then went on to consider whether it would be sufficient to direct that your registration be suspended, a sanction advocated by Mr Kennedy on your behalf. The Panel considered carefully the bundle of testimonials submitted on your behalf which refer to your unquestioned capabilities as a clinician and appreciates that a number of your patients support you despite your convictions. It also considered a letter of support for you from Dr Tony Stanton, Joint Chief Executive of Londonwide LMCs, which states that Camden PCT has chosen to be supportive of you following your convictions. The Panel has also borne in mind your many years service as a medical practitioner, your own strong desire to continue to practise, the fact that there are no previous GMC findings against your registration and the favourable oral evidence of your practice manager, Ms O'Connor, and your former partner in the practice, Dr Nagle."

    Then a little later, this:

    "The Panel considers that, despite your apologies, you still do not appear to have insight into, or to accept, the enormity of your criminal conduct. This was a huge fraud, perpetrated primarily by your daughter, but one in which, in respect of four counts, you were directly involved."

    Then this:

    "Although the counts against you did not require the prosecution to prove dishonesty as an element of the charges, the Panel has no hesitation in finding that your conduct was dishonest. The GMC's Indicative Sanctions Guidance is quite clear on the issue of dishonesty, when it states:
    'Dishonesty, even where it does not result in direct harm to patients… is particularly serious as it undermines the trust the public place in the profession.'
    "And later:
    'There are some examples of misconduct where the Privy Council has upheld decisions to erase a doctor despite strong mitigation. This has been because it would not have been in the public interest to do otherwise given the circumstances concerned.'
    "The Guidance goes on to identify the three most serious areas of concern, one of which is dishonesty.
    "Your dishonesty represents a gross breach of the principles of Good Medical Practice and a falling short of the standards of conduct the public is entitled to expect from a registered medical practitioner. The Panel has determined that your actions are fundamentally incompatible with your continuing to be a registered doctor and that suspension is not a sufficient or appropriate sanction.
    "In order to adequately preserve public trust in the profession and sufficiently register its disapproval of your conduct, the Panel has therefore determined that the only appropriate sanction in this case is to direct that your name be erased from the Medical Register."

    Then after hearing argument, the Panel decided that the order for erasure need not take effect until 28 days after notice of the decision to serve.

  10. Now I will turn to the judgments given by Collins J. As I have indicated, in both cases he directed himself that the test he had to apply on appeal in relation to sanction was whether the Panel had been clearly wrong. I shall have to consider whether that was a proper or adequate approach. In Raschid, Collins J observed (paragraph 25) that:

    "What he was doing, and doing in a thoroughly inappropriate fashion, was trying to maintain a proper doctor-patient relationship with Miss R."

    Later:

    "36. Before I consider finally whether I am persuaded that the sanction imposed was excessive, I should refer to another matter. Once this complaint was made, Dr Raschid was dismissed from his post by the Trust and an alert letter was sent out to other Trusts. The result of that was that he has found it impossible to obtain employment elsewhere within the National Health Service. The result of that is that he has in fact since March of 2004 been unable to obtain gainful employment as a practitioner, and, although he has not been formally suspended, he has in effect not been able to practice. That has had a profoundly damaging effect upon him, as one might expect. I have to consider whether it is appropriate to take that into account.
    "37. It was a matter that was before the Panel, of course, in July of last year, but it is not a matter which they have referred to in the reasons which they gave for imposing the sanction. Miss Lee [I interpolate for the GMC] has submitted that it is generally a matter that is not material when considering the appropriate sanction. I disagree. It seems to me that it is as material as any other form of mitigation."

  11. Collins J's conclusions in the Raschid case were set out in paragraphs 42 to 46 of his judgment as follows:

    "42. What I have to consider is whether I can be persuaded, as I say, that the view taken by the Panel was one which in the circumstances was clearly wrong in as much as they were not reasonably entitled to take the view that they did. I observe that if it were left to me I would have no doubt that the sanction was unnecessarily severe. But that is not the test which is the right one for me to apply because it is not for me to override the view of the Panel, who have the expertise and who draw the lines and make the decisions as to what is or is not to be regarded as serious and justifying a particular penalty.
    "43. On the other hand, this is an appeal, with no limitations beyond those which the Privy Council and this court have indicated are appropriate. I have to consider the matter on the basis of all the material that is before me. I also have to have a particular regard in this context, as it seems to me, for the reasons given by the Panel for proceeding as they did.
    "44. It is, in my view, difficult to follow why they took the view that this case merited the most serious form of suspension, namely, one of twelve months. It would have been open to them to impose, if they felt a suspension was essential, a lesser period of suspension.
    "45. Furthermore, it is, in my judgement[sic], difficult to understand why they felt it necessary to decide that there should be a review hearing. I can understand their concern about keeping clinical knowledge and skills up to date, but that could only be done by a suspended doctor by keeping himself up to date through reading and discussion. Indeed there is no reason to believe that Dr Raschid would not do that because he would still maintain and has still maintained his academic interests. Accordingly, that seems to me in the circumstances to be unnecessary so far as the ability to demonstrate the requirement of an acceptable understanding of the principles of Good Medical Practice. Indeed, it is difficult to see what he could do other than read them and appreciate what they said, and that would not take twelve months for him to do.
    "46. The assertion that an appropriate period of twelve months would allow him to address the deficiency in his conduct really is doing no more than asserting the opinion that the misconduct was serious and that nothing short of the sanction of a period of suspension would suffice. But I have no doubt whatever that to impose that maximum period of suspension was wrong and excessive in all the circumstances of the findings made in this case, having regard to the nature of the misconduct which I have identified."
  12. Collins J then proceeded to accept that some period of suspension was necessary but it should only be for one month.

  13. In Fatnani Collins J opined that the Panel had taken an excessively severe view of the facts. This is what he said:

    "27. The question really is: how did the Panel judge her criminal conduct? Of course it was serious. Of course a sentence of 6 months' imprisonment, albeit suspended, indicates that it was serious, and of course this was an enormous bud m t e d by her daughter. But it is always necessary to remember that she was not convicted of any direct involvement in the fraud. Indeed, there was no evidence that she was in any way directly involved in the fraud. What she was convicted of was assisting in the retention of proceeds, suspecting that they were the proceeds of crime.
    "28. The Panel then went on:

    'This was a huge fraud perpetrated primarily by your daughter.'
    "It was perpetrated entirely by her daughter. Of course, one does not want to read too much into the precise words used by the Panel, nor is it a question of construing it as if it was a statute. But it is a little worrying, in my view, that the Panel used the word 'primarily' in connection with the alleged failure to have insight into or accept the enormity of the criminal conduct. It does suggest that the Panel may have taken a rather more serious view of the appellant's involvement than was justified by the evidence that was before them. It is, of course, easy to say to oneself that she was convicted of offences committed in connection with a most serious and well publicised fraud by her daughter. That, in itself, would no doubt make the public concerned about any sanction which was less than the most severe. But one has to think in terms of the well-informed public, not the public who read the media and do not necessarily follow the full details of any particular matter. In this case, the full details were such as, in my view, did not justify those observations made by the Panel.
    "29. However, they then went on to consider the impact of dishonesty and indicated (and correctly indicated, in my view) that the dishonesty, whatever level one applies to it, did represent a gross breach of the principles of medical practice and falling short of the standards of conduct the public was entitled to expect from a registered medical practitioner. The Panel determined that the actions were fundamentally incompatible with her continuing to be on the Register and that a suspension was not a sufficient or appropriate sanction, and public trust in the profession and disapproval of the conduct needed erasure.
    "30. As I said earlier, although I am persuaded that the observations which I have referred to were not entirely justified, that does not mean that the ultimate sanction was not justified. One has to look -- and I now have to look -- at the conduct and decide whether it does indeed justify the sanction that was imposed by the Fitness to Practise Panel. This was dishonest action by the appellant. It was, in my view, serious dishonesty in the sense that it was an involvement in the proceeds, and assisting her daughter in dealing with the proceeds, of what she must have appreciated was a serious criminality, in the sense that she should have suspected that the very large sums of money which her daughter was able to dispense could not conceivably have come from honest sources, however much she was duped by the dishonesty and the lies told to her by her daughter.
    "31. On the other hand, there were the very favourable reports upon her and the recognition that she has suffered herself very considerably as a result of the conduct of her daughter. She has, to an extent, been a victim of her daughter's dishonesty. I say to an extent because of the £16,000 which her daughter dishonestly obtained h m her. Once she was aware of her daughter's dishonesty, she take [sic] steps to try to do as much as she could to repair the damage which had been caused to others.
    "32. I am bound to say that, having regard to all the circumstances, I do not think that it was necessary to impose the ultimate sanction of erasure. But I would not have thought it right to interfere if the Panel had directed itself in a way which was proper. It is clear that there is what might be described as a 'grey area' where a judge may take the view that he would not have imposed a particular sanction but it cannot be said that to have done so was clearly wrong. I must be careful to ensure that I am not applying my views when the views of the Fitness to Practise Panel are what Parliament has decided primarily are the ones that should prevail. As I repeat, that must depend on the individual case and on the Panel having had regard to anything they should not have had regard to or having taken a mistaken view of the evidence before it.
    "33. For the reasons I have sought to indicate, I take the view that this Panel did, in those respects, take a mistaken view of the seriousness of the conduct of the appellant. For that reason, I feel that I am able to deal with the matter on the basis that the true position is that she was not as seriously involved as the Panel appear to have believed. In all those circumstances, it seems to me that it is not necessary that the end of the appellant's career should be marked by erasure. Still, the seriousness of what she did will have to be recognised and, as is accepted, nothing short of suspension is appropriate. What I propose therefore to do is to allow this appeal and to substitute for the erasure a period of suspension which will now take immediate effect."

  14. So in the event Collins J substituted an order for suspension for 12 months. As I have said the question we must address is: what is the proper reach of the High Court's discretion on an appeal under section 40 of the Medical Act 1983 to vary a sentence imposed on a doctor by the Panel under section 36 or now section 35D? In light of our conclusion, we must consider whether the learned judge below in these cases fell into error. Section 40(7) in the form effective for the purposes of these two cases provides:

    "On an appeal under this section from [the Professional Conduct Committee the Committee on Professional Performance or the Health Committee] the court may (a) dismiss the appeal; (b) allow the appeal and quash the direction or variation appealed against; (c) substitute for the direction or variation appealed against any other direction or variation which could have been given or made by [the committee concerned]; or (d) remit the case to the [committee concerned] to dispose of the case in accordance with the directions of the court and they made such order as to costs (or, in Scotland, expenses) as it thinks fit."

  15. Section 40(7) in its original form, which conferred on the Privy Council the jurisdiction to hear appeals from the Professional Conduct Committee of the GMC, was necessarily couched in terms of a power to make recommendations to Her Majesty's Council. But the substantive appeal provisions were in effect the same as those provided for in the version of section 40(7) which I have read and, indeed, in its up-to-date version.

  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.

  17. The first of these strands may be gleaned from the Privy Council decision in Gupta v the GMC [2002] 1 WLR 169, 1702 at paragraph 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] I 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."

  18. The Panel then is centrally concerned with the reputation or standing of the profession rather than the punishment of the doctor. This as it seems to me engages the second strand to which I have referred. In Marinovitch v GMC, 24 June 2002, Lord Hope giving the judgment of the board said this (paragraph 28, second sentence):

    "28. In the appellant's case the effect of the committee's order is that his erasure is for life but it has been said many times that the Professional Conduct Committee is the body which is best equipped to determine questions as to the sanction that should be imposed in the public interest for serious professional misconduct. This is because the assessment of the seriousness of the misconduct is essentially a matter for the committee in the light of its experience. It is the body which is best qualified to judge what measures are required to maintain the standards and reputation of the profession.

    "29. That is not to say that their lordships may not intervene if there are good grounds for doing so. But in this case their lordships are satisfied that there are no such grounds. This is a case of such a grave nature that the finding that the appellant was unfit to practice was inevitable. The committee was entitled to give greater weight to the public interest and to the need to maintain public confidence in the profession than to the consequences to the appellant of the imposition of the penalty. Their lordships are quite unable to say that the sanction of erasure which the committee decided to impose in this case while undoubtedly severe was wrong or unjustified."

  19. There is, I should note, no tension between this approach and the human rights jurisprudence. That is because of what was said by Lord Hoffman giving the judgment of the board in Bijl [2002] UKPC 42 para 2 to 3, which with great respect I need not set out. As it seems to me the fact that a principal purpose of the Panel's jurisdiction in relation to sanctions is the preservation and maintenance of public confidence in the profession rather than the administration of retributive justice, particular force is given to the need to accord special respect to the judgment of the professional decision-making body in the shape of the Panel. That I think is reflected in the last citation I need give. It consists in Lord Millett's observations at paragraph 34 of Ghosh v GMC [2001] 1 WLR 1915, page 1923G:

    "The board will afford an appropriate measure of respect to the judgment in the committee whether the practitioner's failing amount to serious professional misconduct and on the measures necessary to maintain professional standards and provide adequate protection to the public. But the board will not defer to the committee's judgment more than is warranted by the circumstances."

  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.

  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. His view in Raschid (paragraph 25) that Dr Raschid was "trying to maintain a doctor/patient relationship" was a view of the case expressly rejected by the Panel itself -- see page 193 of our bundle. In fact I should notice that Dr Raschid submitted to us today that he never made that assertion. Moreover the judge's approach to the fact that Dr Raschid has found it impossible to obtain fresh employment is inconsistent with Gupta (approving, in the passage I have cited, the judgment of the then Master of the Rolls in Bolton v the Law Society). I do not consider that Dr Raschid's specific submissions about the unusual nature of his own career affect that conclusion.

  22. Next, the learned judge's views in Raschid as to the period of suspension and the need or lack of it of a review hearing were in reality a substitution of one view of the merits for another. So also the judge's view in Fatnani that the Panel took an overly severe view of the facts; and it is a conclusion by the judge which was not, in my view, in any event justified. I consider that the judge has placed undue weight in Fatnani (paragraph 28) upon the expression used by the Panel: "this was a huge fraud perpetrated primarily by your daughter". The judge points out the fact that it was only the daughter who perpetrated the fraud. It was of course true that it was only the daughter who had abstracted the money; but it is, with respect to the judge below, obvious that the Panel were well aware of that. The Panel's observation, as a comment on the overall criminal culpability in the case, was a perfectly sensible one.

  23. There is no basis on which we should conclude that the Panel in any way misunderstood the nature or extent of Dr Fatnani's involvement in the events which happened or her own insight into her crime. I should say that Mr Hardy's submissions to us this afternoon have very much concentrated on this latter aspect of the case. He showed us some passages of the evidence before the Panel, which do not however to my mind begin to displace the Panel's judgment that Dr Fatnani had not grasped the enormity of her conduct. The Panel heard all the evidence in the case, including Dr Fatnani's own. They cited observations by the trial judge -- the observations are before us -- to the effect that the jury must have been sure that Dr Fatnani suspected her daughter had been engaged in or benefited from criminal conduct.

  24. Mr Hardy has emphasised the enormity of what the daughter has done. But the greater the gravity of her crime, the deeper Dr Fatnani must have kept her head in the sand. The fraud was indeed enormous and Dr Fatnani's part, as described by the Panel, was indeed serious. It cannot be said that they took an unreasonable view of that role or a view that was not justified in the evidence.

  25. Mr Hardy has also cited Dr Fatnani's advocate's address to the Panel. The advocate, Mr Kennedy, summarised her involvement. Nothing there, as I see it, undermines the Panel's judgment. Nor is there any question of the Panel considering that they were legally bound to order erasure once they had found dishonesty.

  26. I acknowledge without cavil that Collins J's judgments are careful and humane. But I have to say that they do not in my view remotely offer sufficient recognition of 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. Applying these principles I am driven to conclude that there was not in either of these cases any proper basis established for overturning the sanctions set by the Fitness to Practise Panel.

  27. Accordingly, I would allow both appeals. I see no basis on which either case should be remitted to the Panel. If my Lords agree, the consequence will be that the sanctions ordered by the Panel will be restored.

  28. LORD JUSTICE CHADWICK: I agree.

  29. SIR PETER GIBSON: I also agree.


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