Varma v General Medical Council

Introduction. This is an appeal by Dr Sushant Varma (“Dr Varma”) against the decision of the General Medical Council (“the GMC”) by its duly appointed Fitness to Practise Panel (“the Panel”) made on 19 September 2006, following the Panel’s hearing and determination of disciplinary proceedings brought against Dr Varma by the GMC in respect of various allegations of misconduct (“the proceedings”), that Dr Varma’s name be erased from the Medical Register and that his registration be immediately suspended. The erasure is automatically held in abeyance pending the outcome of this appeal. The immediate suspension took effect on 19^th September 2006 and continues in effect.

The Background Facts prior to the commencement of the Proceedings. Dr Varma studied medicine at Sheffield University from 1992 to 2001, graduating on 8^th May 2001. During most of the time material to the allegations of misconduct that were considered in the proceedings (December 2000 to September 2002), he was employed by the North Cheshire Hospitals NHS Trust (“the Trust”) as a house officer at Halton General Hospital in Cheshire. His supervising Consultant was Dr Williams. However, Dr Varma has not worked as a doctor since March 2002. In May 2002, he was suspended by the Trust. He is also currently the subject of an “alert letter” issued on 17^th June 2003 – the method whereby all NHS bodies (and private sector employers) nationwide are made aware of a doctor whose performance or conduct is considered by the NHS to place patients or staff at serious actual or potential risk. Alert letters are issued by the relevant Regional Director of Public Health, who must keep their continuing relevance and validity under review: see Health Service Circular 2002/011 issued by the Department of Health and dated 1^st November 2002.

The misconduct allegations against Dr Varma stemmed from concerns about his fitness to practise (especially his honesty) as detailed to the GMC by the Trust’s Medical Director (Dr Rose) by letter dated 4^th December 2002. On 14^th May 2002, the Trust had already suspended Dr Varma in view of those concerns. The Trust had also initiated disciplinary proceedings against him and was due to hold a disciplinary hearing on 15^th May 2003. In the event, Dr Varma tendered his resignation at that hearing and no further action was taken.

In July 2003, Dr Varma applied to the Employment Tribunal alleging constructive dismissal due to “institutional racism” within the Trust. Dr Varma appeared and acted in person at the hearing before the Tribunal, which dismissed his claim on 17^th August 2004. However, on 28^th June 2006, the Employment Appeal Tribunal allowed his appeal against that decision and remitted the case to the Employment Tribunal for reconsideration.

Dr Varma was first made informally aware of the GMC’s proceedings by letter dated 4^th April 2003. At that stage, in accordance with its normal practice, the GMC was awaiting the outcome of the Employment Tribunal claim, because it turned on similar facts and issues. After that claim was dismissed in August 2004, the GMC carried out and concluded its investigation into the concerns expressed by the Trust. This culminated in the formal notification to Dr Varma by letter dated 8^th April 2005 of the specific allegations that were to be put to the GMC’s Case Examiners, together with all supporting documents, under rule 7 of the GMC’s Fitness to Practise Rules 2004 (“the Rules”) for them to decide whether there was a realistic prospect of establishing that fitness to practise was impaired to a degree requiring action on registration and, if so, to refer the matter to the Panel.

On Dr Varma’s behalf his then solicitors, RadcliffesLeBrasseur (instructed by the Medical and Dental Defence Union of Scotland: “MDDUS”), responded to the allegations by letter dated 6^th May 2005. The letter was largely concerned with an allegation of undue delay on the part of the GMC in processing the case. However, the final sentence of the letter stated that the allegations were “substantially denied”, but without giving any particulars.

On 28^th June 2005, the GMC gave formal notice by letter that the Case Examiners had decided to refer the case to the Panel.

By letter dated 13^th April 2006, Dr Varma was given formal notice of the commencement of the Panel hearing (on 15^th May 2006) and the allegations (in a slightly modified form) were formally put to him as 13 heads of charge. In essence the charges accused Dr Varma of dishonesty (motivated, in one instance, by malice). More specifically, the 13 heads of charge covered a course of conduct comprising the following six separate incidents spanning almost two years (from December 2000 to September 2002):

The Grounds of Appeal. Before embarking upon a detailed account of the proceedings, it is necessary to refer to the four grounds of appeal, which are as follows:

“(1)

The Fitness to Practise Panel (“the Panel”) wrongly refused to stay the proceedings against the Appellant, despite the delay since the Respondent received the complaint which led to the hearing before the Panel. That delay (of well over three years) was such that it was an abuse of process in the circumstances (including the damage done to the Appellant’s health by reason of that delay and the changes which were made during that period to the Respondent’s rules relating to the stringency of the test to be applied by the Panel in cases such as the Appellant’s) to continue the proceedings against the Appellant.

(2)

The Panel acted unfairly in proceeding to hear the complaints against the Appellant in his absence.

(3)

The Panel

(i)

unfairly and/or wrongly refused to read relevant and material documents put before the Panel by the Appellant and/or

(ii)

wrongly failed to take into account the material in those documents.

(4)

The penalty imposed on the Appellant was disproportionate.”

The Facts: The Proceedings. Having regard to the nature of the various grounds of appeal, a fairly detailed account of the proceedings before the Panel is obviously required. Such an account is to be found in paragraphs 7 to 27 inclusive of the first witness statement of Ms Toni Gillian Smerdon, the Solicitor to the GMC. Despite the inevitable length of the quotation, I consider that it is necessary and helpful to quote those paragraphs from Ms Smerdon’s witness statement before turning to the parties’ submissions with regard to the grounds of appeal, as follows:

I now turn to consider the parties’ submissions with regard to the four grounds of appeal.

Grounds 1 and 2 As is made clear by Ms Smerdon’s evidence (see above), the original application for an indefinite stay of the proceedings had been made for one or both of the following reasons: (i) as an abuse of process on the ground of delay and (ii) because Dr Varma’s health problems were said to be such that he would be unable to participate in the proceedings by giving evidence and/or instructions. The unsuccessful application for a stay of the proceedings was therefore effectively concerned with the points raised by both grounds of appeal. Accordingly, on behalf of Dr Varma, Mr Hyams very sensibly took these two grounds together and I propose to adopt the same course.

Mr Hyams stressed that three and a half years had elapsed between the date of the original complaint (December 2002) and the commencement of the hearing (May 2006) and that, in its decision not to stay the proceedings, the Panel had concluded that there had been “delays (which) were inordinate and unjustifiable on the part of the GMC”. Having acknowledged that there had been substantial failings on the part of the GMC in relation to this case, the Panel had gone on to express the view that, despite these undoubted shortcomings, there was no evidence of either “manipulation or malicious intent” on the part of the GMC.

Mr Hyams pointed out that the Panel had also indicated that, when considering the issue of Dr Varma’s health, it had preferred the evidence of Professor Bluglass. Mr Hyams emphasised that, in his first report, Professor Bluglass had stated that “the delay has affected (Dr Varma’s) health”, had expressed the view that Dr Varma would have “difficulty giving evidence and explaining himself and in dealing with questions” and that he would find it “very difficult to cope with a hearing which I understand could last for more than a week from perhaps 9am-5.0pm.”

However, as already indicated, on 5^th June 2006, the Panel decided that it was satisfied that Dr Varma could still receive a fair trial, notwithstanding the unjustifiable delay and Dr Varma’s “long term problems of ill health, the nature of which (was) not entirely clear”. Accordingly, the application for a stay of the proceedings was refused.

It was common ground that the principles to be applied when considering whether to stay the proceedings as an abuse of process because of delay are those stated by Rose LJ, Vice President, when giving the judgment of the Court in R ~v~ S (2006) EWCA Crim 77 (hereafter “S”), as follows:

“20.

In our judgment, the discretionary decision whether or not to grant a stay as an abuse of process, because of delay, is an exercise in judicial assessment dependent on judgment rather than on any conclusion as to fact based on evidence …

21.

In the light of the authorities, the correct approach for a judge to whom an application for a stay of process on the ground of delay is made, is to bear in mind the following principles:

(i)

Even where delay is unjustifiable, a permanent stay should be the exception rather than the rule;

(ii)

Where there is no fault on the part of the complainant or the prosecution, it will be very rare for a stay to be granted;

(iii)

No stay should be granted in the absence of serious prejudice to the defence so that no fair trial can be held;

(iv)

When assessing possible serious prejudice, the judge should bear in mind his or her power to regulate the admissibility of evidence and that the trial process itself should ensure that all relevant factual issues arising from delay will be placed before the jury for their consideration in accordance with appropriate direction from the judge;

(v)

If, having considered all these factors, a judge’s assessment is that a fair trial will be possible, a stay should not be granted.”

It was Mr Hyams’ submission that the Panel had erred in refusing to stay the proceedings on 5^th June 2006, particularly having regard to the evidence concerning Dr Varma’s health problems which, it was submitted, had been caused to a significant degree by the unjustifiable delay and clearly showed that his ability to participate properly and meaningfully in the proceedings was so impaired as to render their further progress clearly unfair: see the observations of Elias J in Brabazon-Drenning ~v~ United Kingdom Central Council for Nursing, Midwifery and Health Visitin (2001) HRLR 6 at paragraph 6, where he said this:

“Save in very exceptional cases where the public interest points strongly to the contrary, it must be wrong for a committee which has the livelihood and reputation of a professional individual in the palm of its hands, to go on with a hearing when there is unchallenged medical evidence that the individual is simply not fit to withstand the rigors of the disciplinary process.”

Mr Hyams pointed out that it had been Professor Bluglass’ evidence that the delay had adversely affected Dr Varma’s health and submitted that there was no warrant for the Panel concluding from Professor Bluglass’ evidence (as it did) that Dr Varma could in practice attend the hearing before the Panel. In this regard, Mr Hyams stressed that in a second report, dated 23^rd May 2006, Professor Bluglass had stated his opinion in the following emphatic terms:

“Conclusion

All this now strongly suggests to me that he is developing delusional thinking possibly following the severe stress of dealing with the GMC hearing after a long delay. His overwhelming preoccupation with all these matter (sic) and the amount of time he devotes to his researches also suggests abnormal obsessional traits and finally there is possible evidence of mood swings which may be indicative of an underlying affective disorder.

To establish clearly the processes that are developing in Dr Varma’s case it is now clear that more time and observation would be needed, together with appropriate psychotherapeutic or psychological support.

I repeat my view that he would not be able to instruct his legal advisers for the reasons previously stated and now because of his delusional and distorted thinking.

He is not in a fit state to appear before the Panel.

In my opinion this is now even more clearly a health matter.”

Mr Hyams accepted that in his final report dated 31^st May 2006, Dr Garvey (who gave evidence on this aspect of the matter on behalf of the GMC) had expressed the view that:

“Opinion

1.

I must say that having read the above evidence [i.e. that of Mr Shipway and Professor Bluglass: as to which, see below] I too am less sure that Dr Varma’s beliefs are delusional, though they may be so.

2.

I would now wish to say that on the present evidence Dr Varma is fit to continue with the case. …

3.

There remains the possibility however that Dr Varma’s condition will worsen if proceedings continue and that as a result his ability to concentrate will worsen and the number of persecutory beliefs and the degree of conviction with which they are held will rise so that continuation of proceedings will prove difficult if not impossible.

4.

…

In summary, I think it would not be wrong for proceedings to continue but I think it would be an option for the committee to consider requesting a full health assessment.”

However, Mr Hyams contrasted Dr Garvey’s final report with the terms of the report that he had written only the day before (i.e. 30^th May 2006), in which he had expressed the following view (inter alia):

“I do however feel, that it is likely that at present Dr Varma is incapable of continuing with the case because his delusional thinking will mean that he cannot believe aspects of the advice he is given and is therefore unable to act on it rationally and give legal instructions to his team.”

Mr Hyams submitted that the Panel had erred in that it had decided the application for a stay essentially on the basis of the medical evidence alone and because, even then, it had been selective in its approach to that evidence in choosing to rely only on those aspects of it that supported its conclusion that it would neither be an abuse of process nor unfair for the proceedings to continue. It was Mr Hyams’ submission that the only fair and proper way for the Panel to have determined the matter had been for it to stay the proceedings. He submitted that, on any view, it had been unfair to proceed against Dr Varma whilst he was unable to respond properly to the charges.

On behalf of the GMC, Mr Shaw QC rightly pointed out that Mr Hyams’ submissions in relation to grounds 1 and 2 had focused almost exclusively on the Panel’s treatment of the medical evidence. Mr Shaw emphasised that the Panel had had to exercise a discretion on the basis of medical evidence which did not all point the same way. He stressed that the Panel’s discretionary decision with regard to the application for a stay was “an exercise in judicial assessment rather than on any conclusion as to fact based on evidence”: see paragraph 20 of the judgment in S (quoted above). Mr Shaw submitted that the Court should be slow to interfere with an exercise of judgment by the specialist Panel which turned to a large extent on its assessment of written and oral medical evidence. I agree with that submission.

Mr Shaw stressed that, even in proceedings marked by unjustifiable delay (as he rightly accepted these proceedings were), a stay should be granted only exceptionally and only when there has been “serious prejudice” to the defence such that the proceedings cannot possibly be fairly conducted: see the judgment in S at paragraph 21(iii) (quoted above). Mr Shaw maintained that, in the present case, it was apparent that the Panel was by no means satisfied that serious prejudice (essentially, that Dr Varma’s health problems were such that he could not participate in the proceedings) would inevitably result and submitted that there was ample medical evidence justifying that conclusion, which he summarised as follows.

Mr Shaw stressed that the Panel had heard a considerable amount of oral evidence from (inter alia) Professor Bluglass and that the Professor’s oral evidence as to Dr Varma’s ability to participate meaningfully in the proceedings was far less emphatic than the terms of his reports would appear to suggest. Mr Shaw submitted (correctly, in my view) that, considered as a whole, Professor Bluglass’ evidence was not inconsistent with the conclusions finally reached by the Panel, particularly in the light of Dr Garvey’s evidence and report of 31^st May 2006 (see above). In support of that submission and by way of example, Mr Shaw referred to the following passages (inter alia) in the transcript of Professor Bluglass’ oral evidence.

Mr Shaw submitted that, having considered all the evidence called in relation to the application for the stay (which included the testimony of Dr Varma’s mother, Mr Shipway (his solicitor), the statements prepared by Dr Varma himself and his emails to the defence team as well as the medical evidence), the Panel had been entitled to come to the conclusion (as it did) that Dr Varma could understand the nature of the proceedings and was able to communicate his views to his lawyers. I agree with that submission. I am satisfied that the Panel was clearly entitled to come to such a conclusion on its consideration of all the evidence – in particular, as indicated above, the medical evidence. Furthermore, as Mr Shaw observed, it was a conclusion that was entirely consistent with the following “objective documentary evidence” of his capacity to participate:

I agree with Mr Shaw’s further submission that the Panel was right to bear in mind, as it did, that it had to balance Dr Varma’s private rights against the public interest in having serious allegations properly investigated and adjudicated upon. I also accept that it is clear that the Panel had very much in mind its power to regulate the proceedings so as to ensure fairness. As Mr Shaw pointed out, the Panel cited and applied the judgment of the Divisional Court in R (TP) ~v~ West London Youth Court (2005) EWHC 2583 (Admin) (hereafter “TP”): see paragraph 18 of the judgment, which states:

“The first port of call is not to prevent the court from hearing the case but to grapple with the difficulties. A trial should not be abandoned before all practical steps to overcome the difficulties have been exhausted. It is also, we think, an important point that the judge who is hearing the trial has a continuing jurisdiction to stay proceedings for abuse of process. Thus, if it becomes apparent during the course of the hearing that the claimant is unable effectively to participate, the judge can stay the proceedings at that point. This is surely a better course than staying a prosecution at the outset when events would have shown it could fairly have proceeded.”

Mr Shaw referred to paragraph 26 of the judgment in TP, which gives examples of practical steps that can be taken to promote a fair hearing, such as the use of simple language, taking regular breaks and explaining the proceedings. I accept Mr Shaw’s submission that, in the present case, it is apparent that the Panel correctly applied the principles stated in paragraph 18 of the judgment in TP and also followed the guidance contained in paragraph 26. Thus, for example, as detailed in Ms Smerdon’s evidence (see above), the Panel granted a total of 21 adjournments to facilitate the preparation and presentation of Dr Varma’s case and arrangements were made whereby the GMC ensured that Dr Varma received promptly by email daily transcripts free of charge throughout the hearing.

Having regard to the care that was manifestly taken to ensure the fairness of the proceedings and the terms of the Panel’s ruling on the application for a stay (see Ms Smerdon’s account of the proceedings, passim), I have no doubt that if it had subsequently appeared to the Panel during the course of the hearing that Dr Varma might be unable effectively to participate in the proceedings (as opposed to voluntarily electing not to be present), the Panel would have given further consideration to the question of whether a temporary or permanent stay should be granted. In the event, such consideration never became necessary because (as the history of the proceedings amply demonstrates) Dr Varma’s various actions such as obtaining further legal representation, giving appropriate instructions to his new lawyers and initiating judicial review proceedings clearly demonstrated that the Panel’s conclusions with regard to his ability to participate in the proceedings had been correct.

It is also important to note that, having dismissed the application for a stay, the Panel gave separate consideration to whether it should proceed with the substantive hearing in the belief that Dr Varma would neither be present nor represented – a belief that turned out to be only intermittently true. As Mr Shaw observed, the Panel had a broad power to do so, as provided in Rule 31, which provides:

“Where the practitioner is neither present nor represented at a hearing, the … Panel may nevertheless proceed to consider and determine the allegation if they are satisfied that all reasonable efforts have been made to serve the practitioner with notice of the hearing in accordance with these Rules.”

In my judgment, the Panel was clearly entitled, at that stage, to conclude that Dr Varma had “voluntarily chosen to waive his right to be present and give evidence and be represented” and right to decide to proceed with the hearing in his absence for the reasons that it gave (see paragraph 11 of Ms Smerdon’s witness statement, quoted above). In this regard, it seems to me noteworthy that Dr Varma’s two applications for judicial review of that decision were both refused at the permission stage (see Ms Smerdon’s account of the proceedings, quoted above).

In the event, as Mr Shaw observed, Dr Varma secured new legal representation for six of the remaining 11 hearing days and was also present in the building on at least one of those other days (see Ms Smerdon’s account of the proceedings). Furthermore, in order to accommodate Dr Varma and his new legal representatives, it was agreed that any GMC witness could be recalled for cross-examination. Although the GMC witnesses were scheduled to reappear for that purpose, none was actually recalled on Dr Varma’s own personal instructions to his new legal team.

Having regard to all the foregoing, I am satisfied that the Panel was entitled to form the view that it did (i.e. that Dr Varma was able to participate meaningfully in the proceedings) on the medical and other evidence presented to it for the purposes of the application to stay the proceedings. In my judgment, in the light of that conclusion, the Panel’s exercise of its discretion in refusing a stay cannot be faulted. I am also satisfied that, in all the circumstances of the case, the Panel was right to decide to proceed with the substantive hearing, in the expectation that Dr Varma would not be present or represented, for the reasons that it gave. However, in the event, for much of the remaining hearing Dr Varma was represented and was, in the manner described above, given every opportunity to participate fully in the proceedings as a whole and, to a significant extent, did so through his legal representatives. For all those reasons, I have come to the conclusion that Grounds 1 and 2 of this appeal fail.

Ground 3. Background Facts. On 18^th June 2006, Dr Varma sent 3 lever arch files to the GMC’s Adjudication Section, requesting that they be put before the Panel when it resumed the hearing on 20^th June 2006 (apparently, he also submitted them in a succession of emails on 19^th June). The files in question contained a total of 1355 pages of documents and were without any index. At the time he originally submitted the files, it appears that Dr Varma believed that he would be unrepresented on 20^th June. However, as it turned out, Mr Price-Rowlands appeared for Dr Varma from 20^th June onwards. In the light of his appearance on that day, Mr Price-Rowlands was asked by the Chairman whether the Panel should look at the files. It was then agreed that the Panel should not do so and Mr Price-Rowlands “formally withdr[e]w that documentation on Dr Varma’s behalf.” From then on, until 14^th September (see below), neither the GMC nor the Panel had access to the three files, which remained in the possession of Dr Varma and his legal team. At some stage the files were placed in a cabinet/cupboard in room DL6. Room DL6 was the room in the building set aside for use by Dr Varma and his legal team.

Throughout the period that followed, up until close of business on 13^th September 2006, Dr Varma was legally represented by counsel and solicitors: see Ms Smerdon’s account of the proceedings, quoted above. There was no further reference to the files or their contents by either Dr Varma or his legal representatives until 14^th September 2006, by which date the GMC had closed its case and the Panel had retired to consider its findings of fact in private. However, at midday on 14^th September, Dr Varma sent an email to the GMC in which he asked that the Panel read the files as his “written submissions”, but without specifying any particular document or documents. Dr Varma’s email was in the following terms:

“I write further to the email sent last night at 2340 and again today at 1140.

In room DL6 in the cupboard there are 3 lever arch files of evidence that I wish to be placed before the committee as a matter of urgency as my written submissions to the panel.

The committee as stated in the previous emails will need the employment tribunal bundle and I am assured that Mills and Reeve have a set of it.”

As a result of Dr Varma’s email, the Panel reconvened and heard from the GMC’s counsel (Mr M. Taylor) and the Legal Assessor, who had looked at the files together with the GMC’s solicitor.

When addressing the Panel about Dr Varma’s email and the files, Mr Taylor said this (inter alia):

“I say as counsel that I had no idea that these lever arch files had been left in the building by Dr Varma and neither had my instructing solicitors … and certainly no indication from counsel [for Dr Varma] that the bundles were to be left. …

In the presence of the Legal Assessor we went to … room … DL6 … and there we found within a cabinet these three lever arch files. I have done no more than glimpse through them … and when I did so I had the Legal Assessor with me. My understanding of them is that essentially they are what might be considered to be instructions by Dr Varma to someone who was going to conduct the case on his behalf. They contain no doubt points for cross-examination, concerns, criticisms and matters of that sort.

… You have heard no evidence in this case from Dr Varma or indeed anyone on behalf of Dr Varma and insofar as these three bundles contain points which might have possibly been dealt with in cross-examination of any of the witnesses relied upon by the General Medical Council if they had been recalled, an invitation, as you know, which was extended to Dr Varma and which he has rejected, we do not know what the answers of the doctor or the witnesses would be to any of these points, so to that extent the weight that you could attach to the contents of these lever arch files must perforce be limited. There are, however, other documents there referred to. …

So I just say that just to give you a broad indication of the contents of these documents. I do not really understand why, if these documents are to be placed before you, they could not have been introduced by counsel on instructions before he left yesterday and he could have then at least explained to you what was to be contained in them.

…

I hope that is helpful to you. But the bundles are available. No doubt if the Legal Assessor considers it appropriate he could attempt some brief review of these bundles in order to see if there are some documents which should properly be drawn to your attention but for the reasons I have given at the moment I do not necessarily see that they should be.”

The Legal Assessor then addressed the Panel and said this (inter alia):

“… You have heard Mr Taylor. As he said, I was there when he looked at the bundles. He has given you a summary of what is in the bundles. On what he says, the majority of the material seems to be points about each of the witnesses which could properly have been put in cross-examination if the witnesses had been recalled, but we know from yesterday a conscious decision was made not to cross-examine any recalled witness either by counsel or through Dr Varma in person. So the bundles are available if the Panel feels that it is necessary to look at them. Of course, they are of limited evidential value because none of the points in there … have been put to any of the witnesses and also if there is any case put forward by Dr Varma you have heard no evidence from Dr Varma.”

Having considered the matter in private, the Panel then ruled in public as follows:

“Mr Taylor: An email has been sent to the General Medical Council addressed to Ms Rich and Ms Magill, dated 14^th September 2006 and timed at 12:03. The e-mail purports to be from Sushant Varma. At the time at which the e-mail was received, the General Medical Council had concluded its case and the Panel was already in private session considering the allegations.

You have addressed the Panel on the contents of the folders referred to in the e-mail and upon your brief scrutiny of the documents, in the presence of the Legal Assessor, concluded that they were mainly concerned with instructions about possible cross-examination of witnesses.

In the light of your submissions, the Panel has determined that those documents would not be of assistance.

The Panel also reminds itself of the advice of the Legal Assessor concerning the burden and standard of proof in relation to the allegations against Dr Varma. It is for the General Medical Council to prove the allegations so that the Panel is sure and that Dr Varma does not have to prove anything.

…

This will be communicated electronically to the e-mail address given by Dr Varma so that hopefully he is aware of our adjudication on this particular matter.”

Accordingly, for the reasons given, the Panel did not read any of the documentation contained in the three lever arch files: see paragraph 22 of Ms Smerdon’s account of the proceedings, quoted above.

The parties’ submissions. Mr Hyams submitted that, given the fact that Dr Varma did not attend the hearing before the Panel, the refusal by the Panel to read the documents put before it on 14^th September 2006 was “insupportable”. Mr Hyams acknowledged that the files did contain a large quantity of irrelevant material, but it was his submission that the files also contained a number of relevant documents (a total of 45 out of the 1355 pages were identified as relevant: see tab 20 of the core bundle), including a refutation of the main charge against Dr Varma, namely that he had by deception obtained the signature of the Undergraduate Dean on a form and thereby obtained entry to the UEB examination, when he would not otherwise have obtained such entry. Mr Hyams contended that the Panel’s failure to read the relevant documentation was a fundamental procedural irregularity or was simply unfair. He also submitted, in effect, that the Panel’s conclusions on the charges were, in consequence, irrational and/or unreasonable because, having failed and/or refused to read the relevant documents, the Panel had arrived at its conclusions without having taken into account one or more of the relevant factors contained in those documents.

For his part, Mr Shaw pointed out that the history of the proceedings clearly demonstrated that Dr Varma had been given ample opportunity to resubmit the files and/or to make appropriate use of any of the documents they contained after the files had been formally withdrawn from the Panel by Mr Price-Rowlands on 20^th June. Mr Shaw stressed that Dr Varma was legally represented up to and including the 13^th September, but that at no stage had there been any reference to or use made of any of the files in question or any of the documents they contained. By the afternoon of 14^th September, the GMC had closed its case and the Panel had already retired to consider its findings of fact. Mr Shaw submitted that it was, by then, simply too late for Dr Varma to seek to rely on these files or the documents they contained, particularly when presented to the Panel in such an un-particularised fashion and with the 45 “relevant” pages scattered throughout a total of 1355 pages (of which the balance of 1310 pages were, by inference, irrelevant).

In the circumstances of this case, I agree with Mr Shaw that it was completely unreasonable to expect the Panel to sift through these un-indexed files in order to identify the 45 pages that are now said to be relevant, particularly having regard to the complete absence of any guidance as to what Dr Varma considered to be relevant and why. In my view, that was all the more the case since the Panel was fully aware of and entitled to have regard to the fact that all the documents within the files had been available for appropriate use by Dr Varma and his legal team on each day of the hearing from 20^th June up to and including 13^th September. In my judgment, in all the circumstances and in the light of the submissions of Mr Taylor and the advice of the Legal Assessor, the Panel was entitled to decline to read the files for the reasons that it gave. Accordingly, I am satisfied that the Panel’s decision was not tainted by any procedural irregularity or unfairness and I reject Mr Hyams’ submissions to the contrary effect.

In any event, I agree with Mr Shaw that the files were of no or (at most) very limited utility. For the reasons that follow, I do not accept Mr Hyams’ submission that the Panel failed to take account of one or more material factors as the result of its decision not to read the files.

I agree with Mr Shaw that the files and/or the documents they contained could not have been used for the purpose of fortifying or establishing Dr Varma’s own case, because he had chosen not to give evidence and had advanced no case of his own, although he and/or his counsel had been provided with ample opportunity to put his case to the GMC’s witnesses and to call evidence on his own behalf: see Ms Smerdon’s account of the proceedings (quoted above) and Mr Shaw’s detailed summary of the “surrounding circumstances” as set out in paragraph 9 of his written skeleton argument.

Furthermore, it appears that the majority of the contents of the files related only to cross-examination of the GMC’s various witnesses. As Mr Shaw pointed out, no request was ever made for any such witness to be recalled, despite the GMC’s agreement to such a course being taken and the necessary arrangements having been made for the witnesses to return. On the contrary, Dr Varma himself specifically instructed Mr Price-Rowlands not to request the recall of the GMC’s witnesses: see paragraph 9 of Mr Shaw’s skeleton argument.

Next, as Mr Shaw observed, to the extent that the files contained instructions and comments, it must be assumed that Mr Price-Rowlands followed those instructions and/or utilised the comments as he saw fit. Insofar as any of the material was relevant to submissions (as distinct from evidence) there was ample opportunity for Mr Price-Rowlands to make any such submissions for the reasons already indicated.

Finally, insofar as any of the material in the files was relevant to the later adjudication stages that were dealt with on 18^th and 19^th September 2006, the files and/or any of the documents they contained could have been used by Mr Price-Rowlands, who was in attendance and represented Dr Varma throughout those stages. Significantly, Mr Price-Rowlands made no reference whatsoever to any of the files or their contents: see paragraph 9 of Mr Shaw’s written skeleton argument.

Accordingly, for the foregoing reasons, I am satisfied that the 3^rd Ground of Appeal also fails.

Ground 4. Mr Hyams submitted that the erasure of Dr Varma’s name from the register was not a proportionate response and/or sanction in all the circumstances of the case. It was his submission that Dr Varma should have been asked to undergo a further medical examination and should then have been required to work under supervision for a period of time, if he was able to obtain a post in which he could finish his training.

As Mr Shaw observed, the correct approach for the Court on an appeal against sanction has recently been stated by the Court of Appeal in Raschid v GMC (2007) 1 WLR 1460 (hereafter “Raschid”), per Laws LJ, who said this:

“16.

As it seems to me there are in particular two strands in the relevant learning … 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.

…

19.

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 …

20.

… the High Court will correct the material errors of fact and 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.

…

26.

… I have to say that [the judge’s judgments] 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 …”

Mr Shaw stressed that the Panel had had explicit regard to the GMC’s Indicative Sanctions Guidance, which, under the heading “Erasure” in section 1, provides:

“39.

There are some examples of misconduct where the Privy Council has upheld decisions to erase a doctor despite strong mitigation … The three most serious areas of concern are:

…

b Dishonesty

…

Dishonesty

43.

The GMC’s Guidance” Good Medical Practice” states that registered doctors must be honest and trustworthy.

44.

Dishonesty, even where it does not result in direct harm to patients but is for example related to a doctor’s private life, is particularly serious because it undermines the trust the public place in the profession. Examples of dishonesty in professional practice could include … inaccurate information or misleading information on a CV and failing to take reasonable steps to ensure that statements made in formal documents are accurate.

Mr Shaw also referred to the illustrations of misconduct likely to warrant erasure that are given in section 1 of the Sanctions Guidance, which include “dishonesty (especially where persistent and covered up)” and “persistent lack of insight into seriousness of actions or consequences.” Mr Shaw then drew attention to paragraph 16 of section 1, which contains a section on proportionality that the Panel confirmed it had borne in mind, and referred to paragraph 19 of section 2, which stresses that insight is an important factor in a hearing such as the present.

Mr Shaw submitted (correctly, in my view) that the Panel had been right in deciding to take a serious view of the facts found proved (none of which is challenged on appeal), for the following reasons.

In the light of the foregoing and having regard to the two applicable principles identified in Raschid, I am completely satisfied that there is no arguable basis for challenging the Panel’s decision that Dr Varma’s name should be erased from the register. On the contrary, having regard to the nature and extent of the charges that had been found proved, it seems to me that the Panel’s decision to that effect was entirely correct.

Accordingly, this final ground of appeal also fails.

Conclusion. For the foregoing reasons, I have come to the firm conclusion that this appeal must be and is hereby dismissed.