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Cite as: [2007] EWHC 1644 (Admin)

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Neutral Citation Number: [2007] EWHC 1644 (Admin)
CO/6498/06

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

Royal Courts of Justice
Strand
London WC2
18 May 2007

B e f o r e :

MR JUSTICE GIBBS
____________________

THE QUEEN ON THE APPLICATION OF DR TARUM QUMAR BISWAS (CLAIMANT)
-v-
THE GENERAL MEDICAL COUNCIL (DEFENDANT)

____________________

Computer-Aided Transcript of the Stenograph Notes of
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____________________

MISS MARY O'ROURKE AND MISS C WATSON (Judgment only)(instructed by Howrey Simon Arnold & White) appeared on behalf of the CLAIMANT
MR R ENGLEHART QC (instructed by GMC) appeared on behalf of the DEFENDANT

____________________

HTML VERSION OF JUDGMENT
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Crown Copyright ©

    MR JUSTICE GIBBS:

    Introduction

  1. Dr Biswas (the appellant) appeals to this court under section 40 of the Medical Act against a decision of a Fitness to Practise Panel of the General Medical Council (to whom I shall refer as "the GMC" or "the respondent") given on 4 July 2006. The appellant was found guilty of serious professional misconduct, and the Panel directed that his registration on the medical register should be suspended for a period of nine months. Dr Biswas' appeal is founded essentially on three grounds: one procedural and two substantive. The procedural complaint is that his application for the matter to be adjourned and determined by an entirely differently constituted panel was refused. The substantive complaints are that the panel should not have found serious professional misconduct, or should in any event not have imposed any sanction at all upon Dr Biswas.
  2. The background of the matter is as follows (and I am indebted to counsel for setting it out clearly in the skeleton argument, parts of which I have substantially adopted). The hearing of the panel which is under challenge was the second occasion on which the appellant's case had been considered by a Fitness to Practise Panel of the respondent. On the first occasion, in July 2005, the panel (which I shall call "the first panel"), made various findings of fact adverse to Dr Biswas after a contested hearing during which evidence was given by witnesses. The first panel then went on to decide that it could not be sure that those findings of fact constituted serious professional misconduct.
  3. One of the parties to the panel hearing, namely the Council for Health Care Regulatory Excellence, appealed against that decision to this court. The appeal was decided by Jackson J on 26 January 2006. He held that the panel had erred in law in the test which it applied to its factual findings; that is, a test of proof beyond reasonable doubt to the facts of the case, and also as to whether or not on those facts the conduct amounted to serious professional misconduct. Jackson J held that the question of whether conduct amounted to serious professional misconduct was a matter of judgment for the panel, not a matter which was to be decided on a burden or standard of proof.
  4. The judge remitted the case to decision by the panel on the basis of the correct approach in law, and in particular for the second panel to decide whether, on the basis of the first panel's finding, there had been serious misconduct by the appellant. In the light of the earlier panel's findings, the hearing proceeded solely under Rule 28 of the General Medical Council Preliminary Proceedings Committee and Professional Conduct Committee (Procedure) Rules 1988 (SI No 2255). I shall refer to those Rules as "the 1988 Rules". Miss O'Rourke, who appeared for the appellant, referred to them as "the old rules", in contrast to more recent rules which have replaced them and which differ from the 1988 Rules in respects which she submitted were material.
  5. At the hearing before the second panel, although it would have been possible to call witnesses, both on the issue of the seriousness of the misconduct and in mitigation of sanction, no witnesses were in fact called. As a matter of fact, the appellant was not in attendance at that hearing.
  6. The facts

  7. Dr Biswas is now 80 years old. He retired from General Practice with the National Health Service in 1995. On 4 September 2003 he was working as a locum general practitioner at the Shah Jalal Medical Centre in East London. A patient called Mr Anu Miah attended the surgery with his mother (Mrs Begum), his wife and two sisters on 4 September of that year. Mr Miah saw the appellant, together with his mother and his wife, at about 10 o'clock in the morning. He was suffering from constipation, vomiting, and as the panel found proved, although not admitted, severe abdominal pain.
  8. The appellant failed to take an adequate history from Mr Miah or his mother. He failed to review Mr Miah's medical records properly or at all. He failed to do as advised by Dr Hussein, the regular general practitioner of the patient; that is, to telephone Professor Curtis or his team at the East London hospital to obtain details of the medication that the patient had been taking. The patient had been under the care of Professor Curtis at that hospital for a psychiatric condition. The appellant did not inspect or auscultate (with a stethoscope) the patient's abdomen and, as he admitted, carried out no rectal examination or urine test. Thus, according to the findings of the first panel, Dr Biswas failed to place himself in a position adequately to assess the patient's condition or the treatment needed.
  9. Further, he made a wrong and unsustainable diagnosis of urinary tract infection. He also made a diagnosis of gastritis which the first panel found to be a tenable, though not as it happened accurate, diagnosis. The appellant did not provide the patient or his family with any adequate information about his diagnoses or about the appropriate management and treatment of the patient. He did consider the possibility that the patient might subsequently have to be admitted to hospital, but provided no written information for the benefit of the hospital to be given to assist with the patient's care.
  10. In summary, the earlier panel was satisfied that the appellant's conduct of the consultation was inappropriate, that it lacked respect for the patient and his family, particularly in not telling them sufficiently about his diagnoses and treatment recommendations, and generally that the conduct of the consultation was not in the best interests of the patient.
  11. The first panel was also critical of the inaccurate information which the appellant recorded on the patient's medical records, and of the fact that the appellant made alterations to the patient's medical records subsequent to the original note being made. However, the first panel did not find that there was any dishonesty on the appellant's part in making those alterations.
  12. Tragically, following the consultation, the patient's condition worsened. His family summoned an ambulance. He was taken to hospital, where he was certified dead at about half past 4 on the same afternoon. The cause of death found at post-mortem examination was (1) ischaemic bowel, and (2) impacted faeces. There was no evidence to suggest that the appellant's defaults were in any way causative of the patient's death. In fact, the first panel found that the actual causes of the patient's death would not necessarily have been diagnosed by a general practitioner of reasonable competence.
  13. The charges against the appellant and the findings of the panels

  14. I now come in more detail to the charges faced by the appellant and to the findings in relation to them. I shall deal with these charges and findings in the way that they were helpfully presented to me, namely by reciting each charge and then juxtaposing immediately the finding of the relevant charge.
  15. The first agreed matter in the charges:
  16. "1. At the material time you were working as a locum general practitioner at the Shah Jalal Medical Centre, Hessell Street, London E1."

    That fact was common ground.

    "2. On 4 September 2003 at about 10am you were consulted by Anu Miah who was suffering from constipation, vomiting and severe abdominal pain."

    Finding:

    "Head 2 is found proved in its entirety. The Panel accepted that, on the basis of the evidence of Mrs Begum, Anu Miah's pain was severe."

    The only aspect of that charge which was denied was the alleged severity of the pain, which the first panel found proved.

    "3. During the consultation you failed to obtain an adequate history from:
    (a) Anu Miah."

    Finding:

    "Head 3(a) is found proved. The Panel was satisfied by the evidence of Mrs Begum and Dr Essex, which indicated that your questioning of Anu Miah was minimal and inadequate."
    "(b) the family members who had accompanied him".

    Finding:

    "Head 3(b) is found proved. The Panel was satisfied that you failed to question Mrs Begum sufficiently on the basis that your questioning of Anu Miah was minimal and inadequate."
    "(c) the medical records".

    Finding:

    "Head 3(c) is found proved. The Panel found that you had a duty to inspect the medical records and did not accept your evidence on this matter. There were a number of documents, including various mental health care plans and an entry in the Lloyd George cards which indicated that clozapine had previously been prescribed for Anu Miah."
    "(d) Professor Curtis and his team at the East London and the City Mental Health Trust, despite being advised to do so by Dr Hussein."

    Finding:

    "Head 3(d) is found proved. The Panel found that, as you had not obtained information from any other source as to the medication prescribed for Anu Miah, you should have taken steps to contact Professor Curtis or his team before prescribing for Anu Miah."
    "4. During the consultation you failed to adequately examine Mr Miah in that you did not:
    (a) check his temperature
    (b) check his pulse
    (c) check his blood pressure
    (d) inspect his hands, tongue and mucous membranes ... "

    Heads 4(a) to (d) were found not proved.

  17. In making those findings, the panel said:
  18. "In reaching the above findings the Panel noted that Mrs Begum was outside the consultation room for a short period when she went to the surgery reception to collect her son's medical records. The Panel was unable to be certain, to the criminal standard of proof that is required in order to make such a finding, that you did not check Anu Miah's temperature or pulse or blood pressure or his hands, tongue and mucous membranes during Mrs Begum's absence from the consulting room."
    "4. During the consultation you failed adequately to examine Mr Mia in that you did not ...
    (e) inspect, palpate, percuss or auscultate his abdomen."

    Finding:

    "Head 4(e) is found proved with regard to inspection and auscultation only and not proved in respect of palpation and percussion.
    The Panel reached this finding taking particular account of the evidence from Mrs Begum and from her description of you touching and feeling Anu Miah's stomach. In the light of that evidence the Panel was unable to determine that there had been no palpation or percussion of the abdomen. However, the Panel preferred and was satisfied by the evidence of Mrs Begum as opposed to your evidence. The Panel found that Anu Miah's abdomen was not exposed and therefore no inspection took place. The Panel found that a stethoscope was not used and that therefore auscultation of the abdomen had not taken place."
  19. There were further aspects of the allegation of failure to examine, namely that there had been a failure to perform a rectal examination and a failure to test the patient's urine (4(f) and (g) respectively). Those allegations were admitted.
  20. "5(a) you failed to place yourself in a position to adequately assess Mr Miah's condition and treatment needs."

    This was found proved.

    "(b) you made an inappropriate diagnosis of his urinary tract infection."

    Finding:

    "Head (b) is found proved. No urine test was carried out and the Panel found that insufficient signs and symptoms of urinary tract infection were elicited to justify such a diagnosis."
    "(c) you made an inappropriate diagnosis of gastritis."

    Finding:

    "Head 5(c) is not found proved, as vomiting once, abdominal pain and slight epigastric tenderness could indicate a diagnosis of gastritis."
    "6. You failed to give the patient and his family adequate information about his diagnosis, management and treatment."

    Finding:

    "Head 6 is found proved. The Panel noted your own evidence about the information you provided as well as that given by Mrs Begum and was satisfied that this head of charge is made out."
    "7. You failed to refer Mr Miah to hospital immediately."

    Finding:

    "Head 7 is not found proved. The Panel cannot be certain that, at the time of consultation, the patient's condition required immediate referral. Additionally, it is agreed with Professor Winslet that you could not reasonably have been expected to diagnose Anu Miah's illness or assess its potential severity at that time."
    "9. You failed to make any adequate contemporaneous record of the consultation."

    I have cited this charge as amended. Finding:

    "Head 9, amended so as to read:
    'You failed to make any adequate contemporaneous record of the consultation'
    is found proved on the grounds that the Panel was satisfied that your record was inadequate because it was inaccurate."
    "10. Your conduct as outlined in heads 3 to 9 above:
    (a) was inappropriate
    (b) failed to provide sufficient respect to the patient and his family
    (c) was not in the best interests of the patient."

    These three allegations were all found proved, but 10(b) in particular with respect to head of charge number 6.

  21. Charge 11 simply recited the fact of the patient's death, which was admitted.
  22. "12(a) you later altered the medical records."

    Finding:

    "Head 12(a) is proved in that you altered the medical records after you made them, but the Panel could not be certain when this was done."
    "(b) your conduct in this regard was dishonest."

    Finding:

    "Head 12(b) is not found proved."
  23. The Panel then continued that, having reached its findings of fact, it went on to consider whether the admitted and proven facts would be insufficient to support a finding of serious professional misconduct, and in the light of the evidence that they had heard and the findings of fact that they had made, they concluded that the facts found proved would not be insufficient to support a finding of serious professional misconduct: in other words, there was, as it were, a case to answer under Rule 27(3).
  24. Further representations were then received and the panel's determination was announced. It recited the test to be applied, and it concluded, having noted that it was not alleged that the appellant had any part in causing the patient's death, that no reasonably competent general practitioner could be fairly criticised for failing to diagnose the condition which led to this death. It made a determination in detail as follows:
  25. "On 4 September 2003 at about 10:00am you were consulted by Mr Anu Miah, a 23 year old, who was suffering from constipation, vomiting and severe abdominal pain. Mr Miah's previous medical history included a duodenal ulcer leading to low haemoglobin, substance abuse and mental illness.
    Mr Miah, his mother, his wife and one of his sisters had been driven to the surgery by another sister. He was accompanied into the consulting room by his mother and his wife. His sister remained in the surgery waiting room. On entering the room Mr Miah immediately got onto your examination couch. At some point during the consultation, Mrs Begum left the room for a short time to collect Mr Miah's medical records from the reception.
    During the consultation you failed to obtain an adequate history from Mr Miah, the family members who had accompanied him, or from his medical records. You also failed to obtain such a history from Professor Curtis or his team at the East London and City Mental Health Trust, despite being advised to do so by Dr Hussain, your senior colleague at the Shah Jalal Medical Centre.
    You also failed adequately to examine Mr Miah. The Panel has accepted that some of the necessary components of an adequate examination may have been carried out. However, you did not expose your patient's abdomen which you therefore did not inspect. You did not use a stethoscope and so you did not auscultate his abdomen. You did not perform a rectal examination or test his urine. Taken together your inadequate history and examination meant that you failed to place yourself in a position to adequately assess Mr Miah's condition and treatment needs.
    Despite the fact that no urine test was carried out you made a diagnosis of urinary tract infection. This was inappropriate because there were insufficient signs and symptoms of urinary tract infection to justify such a diagnosis.
    Having diagnosed urinary tract infection, gastritis and constipation, you provided Mr Miah with a prescription for Bisacodyl, Ciprofloxacin, Lansoprazole and Co-Magaldrox and advised his family to take him to hospital 'if necessary'. You did not give them a letter to facilitate this visit if it became necessary. You did not give Mr Miah or his family adequate information about the diagnosis, management and treatment of the conditions you had diagnosed. You failed to make an adequate accurate contemporaneous note of the consultation. You later altered the medical records in respect of the consultation in that you made some minor inconsequential adjustments.
    Mr Miah's condition deteriorated later that day and he was taken to the accident and emergency department of the Royal London Hospital ... "

    The panel then went on to recite the fact and causes of death, to which I have already referred.

  26. These then were the findings of the first panel. As I have mentioned, following the successful appeal to Jackson J, the finding in relation to seriousness was quashed, but the findings which I have just set out in some detail formed the basis of the consideration of the question of seriousness by the second panel. The fundamental issue for the second panel was whether the misconduct which was undoubtedly revealed by those findings was serious.
  27. For the remitted hearing before the second panel, a freshly constituted panel was convened. Of the panel originally proposed for that hearing (a panel consisting of five members), only one had previously sat as a panel member in a case under the 1988 Rules, where the issue to be determined was one of serious professional misconduct. The other four proposed panel members were relatively recently appointed and had only been trained in relation to the new rules, which had come into effect on 1 November 2004. In those new rules the concept of "impairment of fitness to practise" replaced the former test of serious professional misconduct.
  28. The appellant's counsel then, as before this court, Miss O'Rourke, asked that the four panel members who had not previously sat on a case where the test involved serious misconduct should recuse themselves, and that the respondent should provide an appropriately qualified and experienced panel to sit and determine the issue. This would involve the case being adjourned for that purpose. As an alternative, she suggested that the two untrained lay members should recuse themselves, leaving a panel of three, admittedly quorate. She did, however, make clear in putting forward the alternative that she did not accept that a panel of three so constituted would be acceptable and reserved her right to object to the appropriateness of the panel on appeal.
  29. The second panel, as I have said, received no additional evidence, and having heard submissions from Miss O'Rourke and from Miss Plaschkes on behalf of the respondents, made its findings. They are, so far as relevant to this appeal, as follows:
  30. "The Panel notes that, in deciding whether Dr Biswas is guilty of serious professional misconduct, it must consider the totality of the facts found proved and must not go behind them. Its task is to make a value judgement on the conduct of Dr Biswas in the consultation with Mr Miah.
    The facts found proved are of varied seriousness and consequence. Among the totality, the Panel has identified five failings which it felt were particularly serious. These are fundamental to acceptable medical practice and therefore relevant to the possibility of serious professional misconduct.
    Head of charge 3:
    Dr Biswas' failure to take an adequate history.
    Head of charge 4(e):
    Dr Biswas' failure to inspect Mr Miah's abdomen.
    Head of charge 5(a):
    Dr Biswas' failure to place himself in a position to adequately assess Mr Miah's condition and treatment needs.
    Head of charge 6:
    Dr Biswas' failure to give Mr Miah adequate information about the diagnosis, management and treatment.
    Head of charge 9:
    Dr Biswas' failure to make adequate contemporaneous records of the consultation.
    The Panel has noted the content of the GMC's publication 'Good Medical Practice'... "
  31. The Panel then continued by referring to aspects of that publication as relevant to the case. The Panel indicated its acceptance that this was an isolated incident, involving a single consultation with a single patient, that there was no evidence that Dr Biswas' failings caused Mr Miah any harm, and that Dr Biswas accepted through Miss O'Rourke that he had been negligent in his overall care of Mr Miah. As to the latter point, Miss O'Rourke before this court corrected the impression gained that Dr Biswas had accepted negligence. The true position was that Miss O'Rourke had accepted on the basis of the findings of the first panel that she could not contest that there had been misconduct. That error of the second panel, if it was an error, is immaterial to this appeal.
  32. The Panel continued:
  33. "The Panel notes that serious professional misconduct is not defined in legislation, nor is there an agreed definition of it. However, it has considered the words of Lord Cooke in the case of Preiss v General Dental Council [2001] 1 WLR 1926:
    'It is settled that serious professional misconduct does not require moral turpitude. Gross professional negligence can fall within it. Something more is required than a degree of negligence enough to give rise to civil liability but not calling for the opprobrium which inevitably attaches to the disciplinary offence.'
    The Panel notes that serious and persistent failures to meet the standards required of a reasonably competent medical practitioner may lead to a finding of serious professional misconduct, as stated in Good Medical Practice. Though relating to a single consultation, Dr Biswas' actions and omissions in his treatment of Mr Miah exhibited a number of significant failures. The Panel is of the opinion that Dr Biswas' conduct fell short of the standards expected of a reasonably competent general practitioner. It then went on to consider whether these failures were so serious as to amount to serious professional misconduct.
    Taking into account all of the facts admitted and found proved, especially the five identified by this Panel as particularly serious, and having regard to the submissions made under Rule 28 of the Procedure Rules, the Panel has concluded that Dr Biswas' conduct amounts to a significant departure from the standards expected from a registered medical practitioner to the extent that Dr Biswas is guilty of serious professional misconduct."
  34. The panel then moved to the issue of sanctions. It said that it had considered the relevant GMC guidance relating to the matter, that it had borne in mind the issue of proportionality. In particular, it noted that the purpose of sanctions was not to be punitive, but that their effect might be. It said that its duty was first and foremost to protect patients and also to maintain public confidence in the medical profession. It continued as follows:
  35. "The Panel recognises that this was an isolated incident involving one patient only. It further notes that Dr Biswas had not been referred to the GMC previously and that there has been no evidence of repetition of this behaviour since this incident. Nevertheless, it has determined that it would not be sufficient to conclude the case by taking no action or by issuing a reprimand. Such would not reflect the seriousness of the misconduct nor adequately protect patients...
    The Panel did not consider that appropriate conditions could be formulated in this case given Dr Biswas' age, 79 years, and the fact that he has been out of medical practice for almost three years. The Panel has been provided with no evidence to assure it that Dr Biswas has kept his medical knowledge and skills up to date during this period. It could not be satisfied that conditions could be devised which would adequately protect patients.
    The Panel has, after careful consideration, concluded that a period of suspension is a proportionate response and is sufficient to protect the public. It would also maintain public confidence in the profession, uphold proper standards of professional conduct and mark the Panel's concern with regard to the serious nature of Dr Biswas' failings in the care and treatment of his patient, Mr Miah. The Panel has therefore determined that Dr Biswas' registration be suspended for a period of nine months."
  36. The Panel then set out its intention to conduct a review hearing before the end of nine months and gave directions about that.
  37. The legal framework

  38. I now turn to the legal framework as provided by the 1988 Rules. Rule 27(2) provides as follows:
  39. "(2) On the conclusion of proceedings under paragraph (1) the Committee shall consider and determine:
    (i) which, if any, of the remaining facts alleged in the charge and not admitted by the practitioner have been proved to their satisfaction, and
    (ii) whether such facts have been so found proved or admitted would be insufficient to support a finding of serious professional misconduct, and shall record their finding."

    That is the provision that gives the panel the opportunity to say that there is no case to answer.

  40. The second panel were concerned with the next rule, Rule 28:
  41. "28. Circumstances, character, history and pleas in mitigation in cases relating to conduct
    (1) Where, in proceedings under rule 27, the Committee have recorded a finding, whether on the admission of the practitioner or because the evidence adduced has satisfied them to that effect, that the facts, or some of the facts, alleged in any charge have been proved, the Chairman shall invite the Solicitor or the complainant, as the case may be, to address the Committee as to the circumstances leading to those facts, the extent to which such facts are indicative of serious professional misconduct on the part of the practitioner, and as to the character and previous history of the practitioner. The Solicitor or the complainant may adduce oral or documentary evidence to support an address under this rule.
    (2) The Chairman shall then invite the practitioner to address the Committee by way of mitigation and to adduce evidence as aforesaid."
  42. The law in relation to sanctions is set out in the Medical Act 1983:
  43. "36. Professional misconduct and criminal offences
    (1) Where a fully registered person ...
    (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, directó
    (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 requirements so specified as the Committee think fit to impose for the protection of members of the public or in his interests."
  44. Since language is permissive, it is also agreed that it would be open to the Committee to take no action at all. It seems, further, that they may be empowered to issue a reprimand.
  45. Submissions on behalf of the appellant

    Constitution of Panel (grounds 8-10)

  46. Miss O'Rourke submitted that the second GMC Fitness to Practise Panel was inappropriately constituted. In particular, it was not qualified properly or at all to assess the issue before it. It was conceded that its constitution was not open to attack on jurisdictional grounds: in that sense it was properly constituted. But it was submitted both to the panel itself and to this court that for the following reasons the case should not have been heard by that panel and that instead the matter ought to have been adjourned.
  47. The reasons are: (1) the issue was whether the misconduct which the earlier panel had found proved was serious or not; (2) four of the five panel members originally selected to serve had not sat on a panel which had determined the issue of serious professional misconduct under the 1988 Rules. They (or some of them) had only served since the introduction of the test of impairment of fitness to practise, introduced under the new Procedure Rules in 2004; (3) the only panel member who had experience of the issue was the Chairman. He is conceded to have been an experienced panel member, but was a lay person not a doctor; (4) since an important purpose of tribunals such as this panel is that they possess professional expertise, and since that is the reason why courts have frequently said that considerable respect should be accorded to their decision, the proper course would have been to adjourn so that a panel with proper experience could be arranged; (5) rather than accede to that suggestion, the panel adopted the course which Miss O'Rourke had advanced as an alternative, namely that the two lay members without relevant experience should stand down. This course, submits Miss O'Rourke, as she is entitled to, even though it was put forward by her, was insufficient to cure the unfairness and deficiency in the procedure. Whilst two members were admittedly doctors, one at least a general practitioner, their lack of experience in making decisions on the particular issue prevented them from making useful judgments about where precisely in the spectrum of professional misconduct this case lay. That was of particular importance, submitted Miss O'Rourke, since the case lay near the borderline of seriousness or otherwise.
  48. Challenge to finding of serious misconduct (paragraphs 11(a) and (c) of the grounds)

  49. Miss O'Rourke's submissions under this heading are based on two alternative propositions, as they came to be clarified in the course of this hearing. The first was that, in order to come to their conclusions on the seriousness of the appellant's misconduct, the panel must have gone behind the findings of the original panel. They must have had regard to the submissions of Miss Plaschkes, counsel for the respondent, and also to the evidence given at the original Tribunal, which went well beyond that Tribunal's findings, and which it cannot safely be assumed that the original Tribunal accepted. Miss O'Rourke says that the second panel can only have reached their conclusions on seriousness by going behind and beyond those findings. Since they had not themselves heard the evidence or seen the witnesses, they should have been extremely cautious before relying on any fact which depended on an evaluation of witnesses.
  50. Alternatively, submits Miss O'Rourke, if they did confine themselves, as they should have done, to the findings alone, then it was irrational and/or clearly wrong for them to conclude that the misconduct disclosed was serious.
  51. Challenge to the sanction imposed

  52. Miss O'Rourke relies upon a range of arguments in her challenge to the sanction of suspension. In summary they are these. Given the finding of serious misconduct, this case cannot be said to be more than borderline. The panel appears to have fallen into error in considering the appellant's future competence to practise, rather than whether the sanction was proportionate to the misconduct. Again, it must have taken into account evidence which went beyond the findings of the original panel. It paid lip service to the fact that it had not heard live evidence. It paid no or no sufficient regard to the very substantial mitigating circumstances advanced to it: for example, the appellant's lengthy unblemished record of service as a doctor; the fact that the findings related to one appointment with one patient, not to a pattern of misconduct; the panel also appeared to labour under the misapprehension that misconduct was admitted, whereas it was always denied. The only matter conceded by Miss O'Rourke was that, on the basis of the original panel's findings, some misconduct was proved.
  53. A particular feature of mitigation to which the panel gave no or no adequate weight was the failure to take into consideration the lengthy suspension to which the appellant had already been subject. The point relied on by Miss O'Rourke was not simply that the Trust employing the appellant had ceased some time ago to use his services, which in itself would be to his detriment, but that there was substantial additional delay caused by the mistaken advice given by the respondent's own legal adviser to the first panel on 15 July 2005. This, she said, had effectively added well over a year's extra delay and consequent additional bar to the appellant's ability to practise. It was submitted that the court should not hesitate to intervene if it considered the effects of sanction inappropriate or excessive.
  54. In the case of GMC v Professor Sir Roy Meadow 26 October 2006; [2006] EWCA Civ 139 (Court of Appeal), it was made clear by the court that they would have intervened if necessary in relation to sanction in that case.
  55. Mr Englehart's arguments in response were in summary as follows. Under the procedural argument he submitted that the panel was properly constituted with the original five members, that there was nothing in the rules to permit a practitioner to pick and choose who the members of a panel should be, that the panel's decision that the two less experienced lay members should recuse themselves was a proper exercise of the panel's discretion, that the resultant three-person panel, with an experienced Chairman and two medical practitioners, was entirely suitable when assisted by advice from the legal adviser to apply the concept of serious professional misconduct to the facts of the case. It was immaterial that the two medical practitioners had received training under the new as opposed to the old rules. The question of whether professional misconduct is serious is essentially the type of question that a jury should be asked to determine, and as well qualified medical practitioners, the two panel members in question were entirely suitable decision makers.
  56. In relation to the substantive point based on the seriousness or otherwise of professional misconduct, Mr Englehart relied on the judgment of Judge LJ in the case of R(Campbell) v General Medical Council [2005] 1 WLR 3488 at paragraph 23. The court in that case stressed that it was only in the case of manifest error that it would be appropriate for the court to substitute its own view on a matter of this kind. Mr Englehart submitted that the panel's view that this professional misconduct was serious cannot be described as clearly wrong. In fact, such a finding was plainly envisaged by Jackson J when he remitted the matter to the second panel.
  57. Mr Englehart submitted that, in considering the question of serious professional misconduct, the panel correctly adopted the approach approved by the Privy Council in the case of Roylance v GMC (No 2) [2000] 1 AC 311. He pointed out that the diagnosis and treatment of patients is critical to the work of any general practitioner, and that the panel was entitled to take the view that five named failings of the appellant were particularly serious and fundamental to acceptable medical practice. They were entitled to take that view, notwithstanding that these defaults all occurred on a single occasion.
  58. On the issue of sanction, Mr Englehart submitted that the court should be particularly cautious before interfering. The court should bear in mind that the function of sanction is not primarily punitive, but for the protection of the public and for maintenance of standards in and respect for the medical profession. In that context, he submitted that a sanction of nine months' suspension cannot be said to have been manifestly excessive. On the contrary, it was within the reasonable range of sanctions available to the panel and proportionate to the failings which the first panel had found.
  59. Conclusions

    Constitution of panel

  60. I am not persuaded that the panel was in error in proceeding with the hearing with the three members who in fact served. There is no dispute that it was quorate. The lay Chairman was a person of experience: in particular, he had experience of making decisions on the issue of what did or did not amount to the issue of serious professional misconduct. Both the other panel members were doctors, one of them at least a general practitioner. As qualified medical practitioners, they can properly, in my judgment, be regarded as capable of assessing what was or was not serious misconduct in their profession. The question of what is serious or not in the context of medical practice is not a technical legal exercise. The word "serious" is an ordinary English word, not a term of art. The presence of two well qualified medical practitioners on the panel was quite sufficient to ensure a fair and proper hearing of the issue, whether or not either of them had had to apply that precise test in the past.
  61. The presence of an experienced lay Chairman who had decided the point in the past lent weight to the panel. In addition, the lay perspective assisted in viewing the degree of seriousness from the patient's point of view. In my judgment, the challenge to the decision on the basis of the constitution of the panel must fail.
  62. I would add that it would not generally be desirable to encourage challenges to panels, which from a jurisdictional point of view are soundly constituted, on the ground of their balance of expertise or precise qualification to serve on a particular case. To permit such challenges, save in most unusual circumstances, would be to open the way to "forum shopping", as it is commonly called. To be fair to Miss O'Rourke, that was not how she justified her case.
  63. Whether or not these last observations are apt, it seems to me that, on the present facts, there is not even an arguable case that the panel who made this decision was unsuitable to determine the relevant issue. They can properly and correctly be regarded as an expert panel, to whose judgment respect ought to be paid by the court.
  64. Challenge to the finding of serious misconduct

  65. Reduced to its essence, the appellant's argument on this point is that the allegations proven by the first panel could not at their highest be described as serious misconduct, even though they could be described as misconduct. For the second Tribunal to have found them to be serious, it must have erred by taking irrelevant considerations into account. There is a difficulty with this submission which both counsel addressed. Jackson J, who allowed the appeal against the decision of the original panel, considered the question of whether or not, having quashed that decision, he would substitute his own decision or remit the matter to a panel for reconsideration. He decided on the latter course. His reasons for doing so were that, in his view, it was possible that a properly directed panel would find the misconduct serious. I quote from his judgment:
  66. "50. Let me now apply the Court of Appeal's exegesis of section 29 to facts of the present case. The erroneous legal advice given by the legal assessor and accepted by the Panel constitutes 'a failure of process.' If that failure of process had not occurred, it is perfectly possible, but not certain, that the Panel would have found Dr Biswas guilty of serious professional misconduct. Therefore, this appeal is properly brought in accordance with section 29(4)(b) of the 2002 Act, and must be allowed.
    51. I do not know what the Panel would have decided, if it had received correct legal advice. This is not such a clear case that the Court ought to step in and take the decision for itself. In the circumstances, the proper remedy in respect of this ground of appeal is an order for remission to the Panel pursuant to section 29(8)(d) of the 2002 Act."
  67. If Jackson J was right, it seems to follow on the findings of the original Tribunal that a finding of serious misconduct could not be regarded as clearly wrong, still less as irrational in a Wednesbury sense. Mr Englehart relied on this in rebuttal of Miss O'Rourke's submissions. Miss O'Rourke's response was to submit that once Jackson J found that the original panel had been misdirected, he was effectively obliged to remit the matter for consideration. On being pressed, however, she conceded that, if he had thought the decision was, as she put it, "quite blatantly wrong", then he could have substituted his own decision. This feature of the case is I think of significance. I do not go so far as to say that I am bound by Jackson J's expression of opinion or by his decision to remit. But it is worthy of note that he thought that the misconduct was capable of being found serious. Following that expression of his opinion, a panel consisting of two doctors and one experienced lay Chairman found that it was serious. In my view, the misconduct they were considering was capable of being held to be serious. Such a finding cannot be described as irrational or wrong. Whilst it arose from dealings with one patient on one occasion, the variety and totality of the matters found proved could, without any error of law or principle, properly be held to be serious.
  68. Given that the decision was not irrational or wrong, there remains a further question: did the panel mislead itself or was it misled into any error of law or indeed of fact which invalidated its decision? The reasoning in the decision itself was, on the face of it, impeccable. In the passages I have cited, the panel made it clear that it was confining itself to the findings of the original Tribunal. It took into account the fact that only one patient and one consultation was involved. It recognised that there was no causal link between the misconduct and the fatal outcome for the patient, and so on. I have no doubt that it asked itself the correct questions and took all relevant considerations into account.
  69. Despite Miss O'Rourke's submissions, I am not persuaded that the Tribunal was other than true to its word. An issue arose about whether the Tribunal would have been entitled to consider any evidence at all from the original hearing, and, if so, to what extent. Counsel for the respondent certainly invited them to do so at the hearing. Miss O'Rourke submitted that this was wrong, or at least was carried too far. But it seems to me that the second panel was entitled to consider the evidence given to the first. It was entitled to do so provided it only considered such evidence as supported, and was consistent with, the facts found proved by the first Tribunal. It would have been wrong for example to rely on evidence given in relation to allegations found not proved.
  70. I was taken in the course of this hearing to relevant parts of the evidence given to the first panel, and considered them with care in this context. Generally it is to be noted that the first panel preferred the evidence of the deceased patient's mother and of Dr Essex (another witness who gave evidence) to that of the appellant. Thus, in my view, the second panel was entitled at least to consider the evidence of those witnesses in relation to the charges found proved or admitted, if indeed it did so. Such evidence added a proper context and no doubt some cogency to those charges.
  71. Despite the points made somewhat speculatively on what parts of the evidence given to the first panel the second panel may have considered, I can see no error on the part of the second panel in its approach in that context. Nor indeed can I see any error in its approach to the proven or admitted charges, or any indication that the panel fell into error by going behind what was properly referable to the charges found proved. Since, as I have already said, there is no basis for holding that the panel's finding was plainly wrong, this ground of challenge must also fail.
  72. Challenge to the sanction

  73. Miss O'Rourke submits that the sanction was plainly excessive to the extent that the court should intervene for the reasons already mention. At first sight her submission appeared to have some force in that the length of time during which the appellant has in fact been prevented from practice has been lengthy. However, I must have regard to the principles relevant to sanctions in disciplinary proceedings, which are substantially different from those for example applicable in criminal sentencing.
  74. I have regard to the decision in Gupta v the GMC [2002] 1 WLR 169 at page 1702. Paragraph 21 of the opinion given by Lord Rodger of Earlsferry reads as follows:
  75. "21. It has frequently been observed that, where professional discipline is at stake, the relevant committee is not concerned exclusively, or even primarily, with the punishment of the practitioner concerned. Their Lordships refer, for instance, to the judgment of Sir Thomas Bingham MR in Bolton v Law Society [1994] 1 WLR 512, 517H-519E 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. The Master of the Rolls concluded at p 519E:
    '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 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."

    The considerations taking precedence over the individual were the reputation of the profession and the protection of the public, among others.

  76. In the light of those authoritative observations, I come to consider the facts of the present case. There were found, albeit in the context of one consultation, a series of examples of misconduct which, taken together, showed a very worrying disregard for the interests both of the appellant's patient and for those of his family. There was a cursory and wholly inadequate examination of the patient; a complete failure to take the advice of a senior colleague, or indeed other adequate steps to find out what medication the patient was taking; and a cavalier disregard for the need to give his family proper information. All those remarks are justified in terms of the findings of the first panel.
  77. In the course of submissions I was taken to a copy of the notes made by the appellant which were found to be inaccurate. I am not surprised that they were not found to be dishonest by the original panel. In a sense they were inconsequential as that panel said. But taken with the other conduct they confirm the worrying impression that the appellant seemed not to have a proper grip of what he was doing. At all events that was a view open to the panel. In the event, the tragic outcome for the patient would have occurred in any event, and could not reasonably have been prevented. There was no causal link with the appellant's misconduct. That, in my judgment, was a material factor. The consequences of misconduct cannot be excluded from consideration. However, the seriousness of the misconduct does not logically depend on the outcome. It may often be a matter of chance. There is no doubt that misconduct of the kind found in this case had the potential for very serious consequences.
  78. Now, the panel was also aware that the appellant was 79 and his recent practice had been, at most, intermittent. They were therefore entitled to give considerable weight to the protection of the public. The sanction imposed enabled a review to take place before the suspension expired. This met the requirement to give weight to the protection of the public, given the possibility that the appellant might resume practice. Age itself of course should never be a bar to professional practice. But taken together with the facts found in the present case, the picture gave serious cause for concern, and was such that the sanction imposed was well within a reasonable range.
  79. Furthermore, it was consistent with the maintenance of public confidence, since a member of the public, hearing the full facts, might well have been disturbed to hear that the appellant was to be allowed to return immediately to practice, had that been the decision. Miss O'Rourke did not contend to the panel that the imposition of conditions on continued practice was practical. The panel agreed. Under the rules then applicable, there could therefore be no sanction between suspension and mere reprimand.
  80. Miss O'Rourke explained to this court that the reason for her approach before the panel was that she never for a moment expected that suspension was a possibility. That is of course unfortunate, but, in my judgment, there was no unfairness on the part of the panel, nor anything said which raised an expectation that the panel would impose some lesser sanction.
  81. It is of course sad that at the close of a medical career the appellant should have to face an adverse finding in disciplinary proceedings. There is nothing before me to suggest that in his professional life generally he has not given valuable and competent service. But for the reasons given, this appeal must be dismissed.
  82. MR ENGLEHART: My Lord, it did not in fact feature in my Lord's judgment, but there was some discussion between your Lordship and Miss O'Rourke about the fact that it was over a year ago and there was an order for immediate suspension. I thought it right to tell your Lordship that, if he had not appealed, it would indeed have run its course. But under the Medical Act, if you appeal, the direction does not take effect until after the conclusion of the appeal.
  83. MR JUSTICE GIBBS: In effect the suspension remains interim, does it?
  84. MR ENGLEHART: Exactly. The order for immediate suspension is like an interim suspension that you have before a main hearing.
  85. MR JUSTICE GIBBS: As you say, I do not think you drew that to my attention, but I do not think it affects the reasoning in the judgment.
  86. MR ENGLEHART: Absolutely. Your Lordship did not mention it, but I thought I ought to tell your Lordship that. In fact I looked it up yesterday.
  87. MR JUSTICE GIBBS: Thank you, very much. I think the reasoning, particularly in the latter part of my judgment, really makes it clear that that fact is immaterial. Thank you, very much.
  88. MR ENGLEHART: My Lord, in light of your Lordship's judgment, I would ask for the appeal to be dismissed with costs. My Lord, there is a schedule of costs. Whether your Lordship has that --
  89. MR JUSTICE GIBBS: I have not had that.
  90. MR ENGLEHART: I am so sorry.
  91. MR JUSTICE GIBBS: I have had one from the appellant, but I do not think I have had one from you.
  92. MR ENGLEHART: I think there are two from the appellant. My Lord, I say straight away that it is substantially more than the appellants's schedule, and it is fair to say that the GMC did take quite a serious view of this case, in fact to the point that your Lordship did not in the event actually call on me. The concern of the GMC, the general concern, was about objections to the compositions of panels, rather than the facts of this particular case. If I may say so, that perhaps explains my presence. But the amounts -- I dare say your Lordship may think, I do not know, that it does not look out of line in terms of the solicitors' work. It is always very invidious these matters, as far as I am concerned, but I have explained to your Lordship why I am here.
  93. MR JUSTICE GIBBS: You have been most helpful in your submissions, as indeed Miss O'Rourke was, but is it a proper matter for me to consider whether the appellant should have to pay, as it were, for leading counsel?
  94. MR ENGLEHART: I suppose your Lordship could take the view that it was inappropriate to instruct leading counsel. I have explained to your Lordship why I was instructed -- without a junior, I hasten to say.
  95. MR JUSTICE GIBBS: If I found it was appropriate, but nevertheless the appellant should not reasonably be expected to pay the whole of the costs, would that be a legitimate exercise? I am not either questioning the appropriateness of your client's instructing you, and if I were to reduce the amount claimed on the basis that I have mentioned, I would not be depriving you of your remuneration.
  96. MR ENGLEHART: It is so embarrassing on these occasions --
  97. MR JUSTICE GIBBS: Quite, yes, very much so.
  98. MR ENGLEHART: -- this procedure of assessing costs, but there we are, it has to be done. Your Lordship has to take a view as to what is appropriate.
  99. MR JUSTICE GIBBS: Of course, the appellant is supported by his professional body.
  100. MR ENGLEHART: Yes.
  101. MR JUSTICE GIBBS: Thank you, very much. Miss Watson, what do you say about that point?
  102. MISS WATSON: My Lord, I agree, it is never a satisfactory argument to have to have when dealing with lay members of the Bars' fees, but I would ask you to take a general view when comparing the schedule of costs submitted by the appellant.
  103. MR JUSTICE GIBBS: Have I got the up-to-date one?
  104. MISS WATSON: I hope that you do. There are in fact two schedules -- a second one with the costs of today. It does not raise the overall costs very much.
  105. MR JUSTICE GIBBS: There is a fairly dramatic difference between the two schedules.
  106. MISS WATSON: My Lord, yes. I would not ask you to enter into any detailed assessment of costs, but just to take a general view when comparing the two statements of costs, and considering whether or not it would be reasonable for the appellant to pay costs as requested by the respondents, and in particular looking at the second page of the statement of costs.
  107. MR JUSTICE GIBBS: Yes, thank you, very much.
  108. MISS WATSON: My Lord, for the avoidance of doubt, of course, it is my submission that they are excessive given the nature of the case.
  109. MR JUSTICE GIBBS: Yes, thank you.
  110. Well, taking an overall view of this matter, and having regard to the legitimate reasons why the respondent should engage leading counsel of some experience and weight, but looking also at reasonableness from the point of view of the appellant, I assess costs in the total sum of £12,000 inclusive of VAT. I am grateful to both of you, and to Miss O'Rourke for her submissions. Predictably I took a great deal longer over my judgment than I expected. In mitigation I would say that I do not usually over-run by as long as that.


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