Saha v The General Medical Council

This is an appeal from a decision ("the Decision") of a Fitness to Practise Panel ("the Panel") of the Respondent, the General Medical Council ("the GMC") dated 19 October 2007. By the Decision, the Panel held that the fitness to practise of the Appellant, Dr. Sisir Saha, was impaired by reason of misconduct and directed that his registration be erased. The relevant misconduct found was a failure by the Appellant to co-operate fully and to provide relevant information, in breach of paragraph 30 of Good Medical Practice, in connection with an investigation by the GMC into the Appellant's conduct. The investigation concerned the fact that the Appellant was or had been a health care worker who was infected with hepatitis B.

The appeal, brought under s.40 of the Medical Act 1983, as amended, is in respect of (a) the findings of misconduct made by the Panel (b) the Panel's decision that the Appellant's fitness to practice is impaired and (c) the decision to impose the sanction of erasure.

The Appellant is now 72 years old. He was born in India, and qualified as a doctor in 1965. He came to this country in 1967 and since then practised medicine, principally in the north of England. His work was as a surgeon in hospitals in a number of locum posts arranged through locum agencies. He claimed that at some time, probably in 2004, he retired from practice. Where a doctor retires from practice, he remains on the medical register. There is no need to notify the GMC of retirement; and there is nothing to prevent a doctor from resuming practice after retirement.

In 1993, the Appellant was diagnosed with hepatitis B as a result of a blood test, which showed that he was "e-antigen negative". At all material times, there has been in place NHS guidance dealing with health care workers who are infected with hepatitis B. In particular, that guidance was supplemented in June 2000 by Health Service Circular HSC 2000/020 "Hepatitis B Infected Health Care Workers" ("the 2000 Circular"), which extended the guidance to workers who are e-antigen negative and introduced measures to prevent such workers, whose viral load exceeded specified limits, from performing exposure prone procedures ("EPPs").

Over time the Appellant underwent "viral load" testing. Those tests were undertaken at the Appellant's own initiative. They were carried out by him going to his own GP, who would send the blood samples to the microbiology department of the Doncaster NHS Trust which would in turn report the results back to the GP. The Appellant's test results between 2000 and 2003 were as follows: in June 2000, a viral load of 1100 copies per ml; in August 2001, 2995 copies/ml; and in March 2003, a viral load of less than 400 copies/ml. No test was undertaken in 2004. Thereafter, in 2005 and 2006, the Appellant undertook further tests: the May 2005 test showed no infection at all; the June 2006 test showed a viral load of 2700 copies/ml and a test, one month later, showed no infection. (Given the inconsistency between these two last tests, the Appellant himself consistently disputed the validity of the June 2006 results). The Appellant claimed that, after his retirement in 2004, he continued to monitor his hepatitis B levels for his own private purposes.

In July 2006, the fact that the Appellant, a locum surgeon, had been seeking hepatitis B tests through his GP came to the attention of Dr. Christine Hoy, a consultant microbiologist working at the microbiology department. Aware of the 2000 Circular and the need for the involvement of an occupational health department, Dr. Hoy contacted the Appellant's GP, a Dr. Khan and then Dr. Wendy Phillips, the unit director and consultant in communicable disease control at the Health Protection Agency in Doncaster. Dr. Hoy alerted Dr. Phillips that requests for blood tests had come from a hepatitis B positive locum surgeon who had been working for 20 years and that those tests had not been processed under formal occupational health screening procedures.

In July 2006, Dr. Phillips wrote to the Appellant, pointing out the requirements of the 2000 Circular for testing and monitoring. That letter was copied to Dr. Tony Baxter, the Director of Public Health at Doncaster East NHS Primary Care Trust. In August 2006, Dr. Phillips twice spoke to the Appellant on the telephone and also sought advice from Dr. Boxall, a virologist. Dr. Phillips referred the matter to Dr. Baxter. Dr. Baxter sought advice from the National Clinical Assessment Service (NCAS) of the National Patient Safety Agency. NCAS advised Dr. Baxter to refer the matter to the GMC on the basis that the Appellant appeared to be in breach of paragraphs 59 and 60 of the GMC's Good Medical Practice. At about the same time Dr. Baxter wrote to the Appellant asking him not to undertake any EPPs until he had undertaken a formal occupational health assessment in compliance with the 2000 Circular. The Appellant then called Dr. Baxter on the telephone and in the course of that call told Dr. Baxter that he was no longer working. By email dated 18 August 2006, Dr. Baxter referred the matter to the GMC.

Thereafter, from September 2006, the GMC made inquiries of the Appellant, requesting that he provide information as to his current and past employers. The Appellant did not provide answers to all of those inquiries, and it is this failure which was found by the Panel to have constituted the misconduct leading to the finding of impairment of fitness to practise. The detail of the relevant exchanges between the GMC and the Appellant forming the basis of the misconduct is considered in paragraphs 38 to 50 below.

The statutory framework for the GMC and the Panel is to be found in the Medical Act 1983, as amended ("the Act"), the General Medical Council (Fitness to Practise) Rules 2004, made under the Act ("the Rules"), and the GMC's own "Indicative Sanctions Guidance for Fitness to Practise Panels (April 2005 edn) ("the ISG"). Other relevant material is to be found in certain case law and in the GMC's own statement of principles of good practice in its publication, Good Medical Practice.

Section 1(1A) of the Act provides that “the main objective of the General Council in exercising their functions is to protect, promote and maintain the health and safety of the public.” Part V of the Act makes provision for fitness to practise and medical ethics.

The procedure for determination of "fitness to practise" is divided into two distinct stages: investigation by the Investigation Committee and consideration and determination by a Fitness to Practice Panel (“FTP panel”).

Section 35C contains the key provisions concerning the concept of "impairment", providing as follows:

“(1). This section applies where an allegation is made to the General Council against—

(a)

a fully registered person; or

(b)

a person who is provisionally registered,

that his fitness to practise is impaired.

(2)

A person’s fitness to practise shall be regarded as “impaired” for the purposes of this Act by reason only of—

(a)

misconduct;

(b)

deficient professional performance;

(c)

a conviction or caution in the British Islands for a criminal offence, or a conviction elsewhere for an offence which, if committed in England and Wales, would constitute a criminal offence;

(d)

adverse physical or mental health; or

(e)

a determination by a body in the United Kingdom responsible under any enactment for the regulation of a health or social care profession to the effect that his fitness to practise as a member of that profession is impaired, or a determination by a regulatory body elsewhere to the same effect.”

S.35C (4) provides that “the Investigation Committee” shall investigate an allegation of impairment and decide whether it should be considered by an FTP panel. If it does so consider, then s.35C (5) provides that it must give a direction to registrar, who in turn must refer it to an FTP panel. Section 35CC(3) provides that s.35C also applies in a case where matters comes to the General Council's attention even though there has been no “allegation” of impairment. Within the procedure before the Investigation Committee, rule 8 of the Rules provides a procedure for the allegation to be referred to “Case Examiners”, who are the persons who take the decision whether to refer to an FTP panel or not.

S.35D(2) of the Act provides that where the FTP panel finds that fitness is impaired, then the panel may direct erasure from the register, suspension of registration, or that registration shall be conditional on compliance with specified requirements. S.35D(3) provides that even if the FTP panel finds that fitness to practise is not impaired, the panel may nevertheless give a warning. Rule 17 of the Rules sets out the procedure before the panel. In particular, Rule 17 prescribes three formal stages of procedure leading to three distinct findings relating to (a) the facts (b) impairment of fitness to practise and (c) sanction or warning.

As appears from the terms of s.35C(2), there are five distinct grounds upon which impairment can be found, the first of which is ”misconduct”. In Zygmunt v. General Medical Council [2008] EWHC 2643 (Admin), Mitting J made the following observations on the concepts of misconduct and impairment, and the inter-relationship between the two. After referring to Rule 17 he continued (at §§ 26 to 32):

“26.

…The rules reflect the words of section 35C(2) of the Act which, on a natural reading, requires impairment of fitness to practise to be established by reason of, and therefore as well as, one of the five circumstances specified in the subsection upon which the finding must be based.

27.

Mr Hare for the GMC accepts the following proposition: even though the Panel properly finds that a practitioner has been guilty of misconduct or that his professional performance has been deficient, it may (my emphasis) conclude that fitness to practise is not impaired. In many, perhaps the great majority of cases, the issue will not be live, but in cases in which it is, it must be separately and appropriately addressed by the Panel .

The issue is far from easy to define as Smith LJ observed in her fifth Shipman Report at paragraphs 25.42 and 43:

"25.42.

The advantage of the concept of 'impairment of fitness to practice' is that it is capable of embracing any or all of the types of problem that the GMC habitually encounters, ie, misconduct (including breaches of the criminal law leading to convictions or cautions), deficient professional performance, adverse health or determinations.

25.43.

The disadvantage of the concept is that it is not at all clear what it means. The concept is not defined in the 1983 Act or in the Rules which are to govern the operation of the new procedures. The only relevant legislative provision is at section 35C of the 1983 Act, where it is said that a doctor's fitness to practise shall be regarded as 'impaired' by reason only of misconduct, deficient professional performance, a conviction or caution, adverse physical or mental health or a determination. That section imposes a limitation upon the routes by which a doctor's fitness to practise might be found to be impaired, but it does not help in understanding what an impairment of fitness to practise is. I have said elsewhere in this Report that the expressions 'serious professional misconduct' (SPM) and 'seriously deficient performance' (SDP) were difficult to define or even to recognise. I believe that even greater difficulty will be encountered with 'impairment or fitness to practise' unless it is clearly defined."

I respectfully repeat and adopt her observation in paragraph 133:

"There is an urgent need for the GMC to formulate the standards, criteria and thresholds by which the impairment of fitness to practise is to be judged."

28.

Current GMC guidance, given following criticism by Smith LJ of an earlier version, is given in section 1, paragraph 11 of the Indicative Sanctions Guidance for Fitness to Practise Panels of April 2005:

"Neither the Act nor the Rules define what is meant by impaired fitness to practise but for the reasons explained below, it is clear that the GMC's role in relation to fitness to practise is to consider concerns which are so serious as to raise the question whether the doctor concerned should continue to practise either with restrictions on registration or at all."

This is unhelpful. To advise a decision-making Panel as to the test which it must apply that "the GMC's role in relation to fitness to practise is to consider concerns which are so serious as to raise the question whether the doctor concerned should continue to practise ..." (my emphasis) does not define a test at all. It identifies and begs the question without providing any guidance as to how it is to be answered .

29.

Smith LJ helpfully identified recurrent features of cases in which impairment of fitness to practise has been found to exist at paragraph 25.50 of her report:

"25.50.

I think it will be helpful, in the resolution of the problems that I am about to outline, if I analyse the reasons why a decision-maker might conclude that a doctor is unfit to practise or that his/her fitness to practise is impaired. In the examples I discussed above, four reasons for unfitness recurred. They were (a) that the doctor presented a risk to patients, (b) that the doctor had brought the profession into disrepute, (c) that the doctor had breached one of the fundamental tenets of the profession and (d) that the doctor's integrity could not be relied upon. Lack of integrity might or might not involve a risk to patients. It might or might not bring the profession into disrepute. It might be regarded as a fundamental tenet of the profession. I think it right to include it as a separate reason why a doctor might be regarded as unfit to practise, because it is relevant even when it arises in a way that is quite unrelated to the doctor's work as a doctor."

That passage demonstrates, as is I think self-evident, that the concept of fitness to practise is not limited to clinical performance.

30.

Smith LJ also helpfully spelt out that which is expressed in the words of section 35C (2) at 25.48:

"25.48.

Another potential problem arises with the time when fitness to practise is measured or assessed. The 1983 Act permits an FTP Panel to take action on registration if it finds that the doctor's fitness to practise is impaired. That implies that the impairment must be present at the time of the hearing. So, if a doctor has committed a serious act of misconduct a year ago, does that indicate that his/her fitness to practise is currently impaired? I understand that the GMC has been advised that, although section 35D(2) of the 1983 Act refers to a finding that a doctor's fitness to practise is impaired, present impairment of fitness to practise can be founded on past matters. That seems sensible. The doctor's current fitness to practise must be gauged partly by his/her past conduct or performance. It must also be judged by reference to how s/he is likely to behave or perform in the future."

31.

In a misconduct or deficient performance case, the task of the Panel is to determine whether the fitness to practise is impaired by reason of misconduct or deficient performance. It may well be, especially in circumstances in which the practitioner does acknowledge his deficiencies and take prompt and sufficient steps to remedy them, that there will be cases in which a practitioner is no longer any less fit to practise than colleagues with an unblemished record.

32.

With one qualification, I agree with and adopt the judgment of Silber J in Cohen v GMC [2008] EWHC 581 Admin at paragraphs 62 to 64:

"62.

Any approach to the issue of whether a doctor's fitness to practice should be regarded as 'impaired' must take account of 'the need to protect the individual patient, and the collective need to maintain confidence in the profession as well as declaring and upholding proper standards of conduct and behaviour of the public in their doctors and that public interest includes amongst other things the protection of patients, maintenance of public confidence in the profession'. In my view, at stage 2 when fitness to practice is being considered, the task of the Panel is to take account of the misconduct of the practitioner and then to consider it in the light of all the other relevant factors known to them in answering whether by reason of the doctor's misconduct, his or her fitness to practice has been impaired. It must not be forgotten that a finding in respect of fitness to practice determines whether sanctions can be imposed: section 35D of the Act.

63.

I must stress that the fact that the stage 2 is separate from stage 1 shows that it was not intended that every case of misconduct found at stage 1 must automatically mean that the practitioner's fitness to practice is impaired.

64.

There must always be situations in which a Panel can properly conclude that the act of misconduct was an isolated error on the part of a medical practitioner and that the chance of it being repeated in the future is so remote that his or her fitness to practice has not been impaired. Indeed the Rules have been drafted on the basis that the once the Panel has found misconduct, it has to consider as a separate and discreet exercise whether the practitioner's fitness to practice has been impaired. Indeed section 35D(3) of the Act states that where the Panel finds that the practitioner's fitness to practice is not impaired, 'they may nevertheless give him a warning regarding his future conduct or performance'."

The qualification is that I would substitute the present for the past tense in the second sentence of paragraph 62.” (my emphasis in bold )

More recently, in Cheatle v. General Medical Council [2009] EWHC 645 (Admin), Cranston J, after setting out s.35C (2), addressed “impairment of fitness to practise”. At §§17 and 18 of his judgment, he stated that “"Impairment of fitness to practise" is a somewhat elusive concept” and then re-iterated the content of §§27 to 29 of Zygmunt and in particular Dame Janet Smith’s observations in her fifth Shipman Report. After endorsing Mitting J’s observation that paragraph 11 of the GMC’s ISG “begs the question”, he then continued, at §19:

“(b)

A two-step process

19.

Whatever the meaning of impairment of fitness to practise, it is clear from the design of section 35C that a panel must engage in a two-step process. First, it must decide whether there has been misconduct, deficient professional performance or whether the other circumstances set out in the section are present. Then it must go on to determine whether, as a result, fitness to practise is impaired. Thus it may be that despite a doctor having been guilty of misconduct, for example, a Fitness to Practise Panel may decide that his or her fitness to practise is not impaired.”

At §20, Cranston J considered the meaning of misconduct and deficient professional performance, and stated that “culpable conduct under section 35C need not occur in relation to clinical treatment. An obvious example is sexual misconduct with patients; another could arise from giving expert evidence in court”. He continued:

“(c)

Context of misconduct etc.

21.

There is clear authority that in determining impairment of fitness to practise at the time of the hearing regard must be had to the way the person has acted or failed to act in the past. As Sir Anthony Clarke MR put it in Meadow v General Medical Council [2006] EWCA Civ 1390; [2007] 1 QB 462:

"In short, the purpose of [fitness to practise] proceedings is not to punish the practitioner for past misdoings but to protect the public against the acts and omissions of those who are not fit to practise. The FPP thus looks forward not back. However, in order to form a view as to the fitness of a person to practise today, it is evident that it will have to take account of the way in which the person concerned has acted or failed to act in the past" (para 32).

22.

In my judgment this means that the context of the doctor's behaviour must be examined. In circumstances where there is misconduct at a particular time, the issue becomes whether that misconduct, in the context of the doctor's behaviour both before the misconduct and to the present time, is such as to mean that his or her fitness to practise is impaired. The doctor's misconduct at a particular time may be so egregious that, looking forward, a panel is persuaded that the doctor is simply not fit to practise medicine without restrictions, or maybe at all. On the other hand, the doctor's misconduct may be such that, seen within the context of an otherwise unblemished record, a Fitness to Practise Panel could conclude that, looking forward, his or her fitness to practise is not impaired, despite the misconduct.”

Finally, when addressing the particular misconduct in question in that case, Cranston J said as follows:

“63.The authorities quoted above make clear that a finding that fitness to practise is impaired is a two step process. First, there must be a finding of serious misconduct. Secondly, the Panel must conclude that, as a result, the doctor's fitness to practise is impaired. In coming to a conclusion on impairment, the authorities make clear that the Panel must look forward. It must consider whether, in the light of what happened, and of evidence as to the doctor's conduct and ability demonstrated both before and after the misconduct, fitness to practise is impaired by the particular events”

In addition to paragraph 11 cited at §28 of Zygmunt, paragraphs 12 to 15 of the ISG, which deal with the public interest, are also relevant to the issue of impairment (see Silber J at §62 in Cohen above) . Paragraph 13 provides:

“… that in addition to the protection of the public, the public interest includes, amongst other things:

a.

Protection of patients

b.

Maintenance of public confidence in the profession

c.

Declaring and upholding proper standards of conduct and behaviour.

Further guidance is given at paragraphs 53 to 59 (at S3-13 to 15) of the ISG. Paragraphs 55 and 57 provide:

“55.

In short, the public is entitled to expect that their doctor is fit to practise, and follows the GMC’s principles of good practice described in Good Medical Practice. It sets out the standards of competence, care and conduct expected of doctors ….

The GMC’s role in regulation

57.

All human beings make mistakes from time to time. Doctors are no different. While occasional one-off mistakes need to be thoroughly investigated by those immediately involved where the incident occurred and any harm put right, they are unlikely in themselves to indicate a fitness to practise problem. Good Medical Practice puts it this way:

‘Serious or persistent failures to meet the standards in this booklet may put your registration at risk’.”

S. 35A of the Act contains provisions relating to disclosure of information as follows:

(1)

For the purpose of assisting the General Council or any of their committees or the Registrar in carrying out functions in respect of a practitioner’s fitness to practise, or for the purpose of assisting the Registrar in carrying out functions in respect of identifying any person registered by virtue of section 18A(1)(b), a person authorised by the Council may require—

(a)

a practitioner (except the practitioner in respect of whom the information or document is sought); or

(b)

any other person,

who in his opinion is able to supply information or produce any document which appears relevant to the discharge of any such function, to supply such information or produce such a document.

(2)

As soon as is reasonably practicable after the relevant date, the General Council shall require, from a practitioner whose fitness to practise is being investigated, details of any person—

(a)

by whom the practitioner is employed to provide services in, or in relation to, any area of medicine; or

(b)

with whom he has an arrangement to do so.”

S.35B makes provision for the notification and disclosure of an investigation of a practitioner's fitness to practise. S.35B(1) provides:

(1)

As soon as is reasonably practicable after the relevant date, the General Council shall notify the following of an investigation by the General Council of a practitioner’s fitness to practise—

…

(b)

any person in the United Kingdom of whom the General Council are aware—

(i)

by whom the practitioner concerned is employed to provide services in, or in relation to, any area of medicine, or

(ii)

with whom he has an arrangement to do so.”

Paragraph 30 of Good Medical Practice provides:

"You must co-operate fully with any formal inquiry into the treatment of a patient and with any complaints procedure which applies to your work. You must give, to those who are entitled to ask for it, any relevant information in connection with an investigation into your own, or another health care professional's, conduct, performance or health"

Section 40 of the Act makes provision for appeals from Panel decisions to, inter alia, this Court. By s.40 (1) (a), appealable decisions include an FTP panel decision under s.35D giving a direction for erasure, for suspension, or for conditional registration or varying the conditions imposed by a direction for conditional registration. Under s.40(7), this Court's powers on appeal include the power to dismiss the appeal, to allow the appeal and quash the direction appealed against, to substitute its own direction, or to remit the case to the Registrar for referral to a panel to dispose of the case in accordance with the Court's directions.

An appeal under s.40 is a full appeal by way of rehearing (and is thus broader than the jurisdiction on an application for judicial review). The question for the Court is whether the Panel was wrong, either as a matter of fact or law. The Court will bear well in mind that the Panel has had the benefit of hearing and seeing witnesses, and moreover, on issues involving the exercise of judgment, upon which there may reasonably be different answers, the Court will accord due respect to the special expertise of the Panel. This will be particularly the case on questions relating to fitness to practise and sanction. See discussion of Cranston J in Cheatle, supra, at §§ 12 to 15, citing Auld LJ in Meadow v GMC [2007] QB 462 at §197 and also Raschid v. GMC [2007] 1 WLR 1460 at §§15 to 20, (to which I refer further below on the issue of sanction).

In August 1993 the NHS issued Health Service Guidelines entitled "Protecting health care workers and patients from hepatitis B" HSG (93)40 ("the 1993 Guidelines"). In so far as they cover health care workers, the 1993 Guidelines provide that "exposure prone procedures" should not be performed by a health care worker who was hepatitis B "e-antigen positive"; whilst a worker who was surface antigen positive, but e-antigen negative did not need to be barred from any area of work. An "exposure prone procedure" is one where there is a risk that injury to the health care worker will result in his or her blood contaminating a patient's open tissues.

In June 2000, the 1993 Guidelines were supplemented by the 2000 Circular, which itself was supplemented by "Guidance on Implementation of Health Service Circular 2000/020" issued at the same time ("Implementation Guidance"). The 2000 Circular extended the earlier guidance to health care workers who are e-antigen negative, recommending the carrying out of viral load testing and placing restrictions on EPPs carried out by those whose viral load exceeded 10³ genome equivalents per ml. The 2000 Circular provided as follows:

"Summary

1.

This circular supplements previous guidance on hepatitis B infected health care workers, and aims to reduce further the risk of transmission of infection to patients. The circular recommends carrying out additional testing of hepatitis B infected health care workers who are e-antigen (HBeAg) negative and perform exposure prone procedures, and restricting the working practices of those with higher viral loads.

...

Action

3.

NHS Trusts, Primary Care Trusts, independent contractors in the General Medical and Dental Services and Health Authorities (who employ relevant staff) should ensure that there are arrangements in place

- to have all hepatitis B infected health care workers, who are e-antigen negative and who perform exposure prone procedures or clinical duties in renal units tested for viral load (hepatitis B virus DNA). The testing of staff currently employed should be completed by 1 June 2001 at the latest

- to restrict those who have a viral load which exceeds 10 ³ (i.e. 1000) genome equivalents per mil from performing exposure prone procedures. Subject to annual re-testing, health care workers whose viral loads do not exceed 10 ³ genome equivalents per ml need not have their working practices restricted, but they should receive appropriate occupational health advice; …”

Paragraph 16 of the Implementation Guidance provides:

"Hepatitis B infected health care workers without the e-antigen who refuse to have their viral load tested should not be allowed to carry out exposure prone procedures in the future."

Paragraphs 19 and 20 of the Implementation Guidance address confidentiality and related matters in the following terms:

“ Confidentiality

19.

It is extremely important that hepatitis B infected health care workers receive the same right of confidentiality as any patient seeking or receiving medical care. Occupational health physicians, who work within strict guidelines on confidentiality, have a key role in this process, and the close involvement of occupational health departments in revising local procedures for managing hepatitis B infected health care workers is strongly recommended. Occupational health notes are separate from other hospital notes. Occupational health physicians are ethically and professionally obliged not to release information without the consent of the individual. There are occasions when an employer may need to be advised that a change of duties should take place, but hepatitis B status itself will not normally be disclosed without the health care worker’s consent. Where patients are, or have been, at risk, however, it may be necessary in the public interest for the employer to have access to confidential information.

Duties of other health care workers

20.

Health care workers who know or have good reason to believe (having taken steps to confirm the facts as far as practicable), that a hepatitis B infected health care worker has not followed advice to modify their practice, should inform an appropriate person in the health care worker's employing or contracting authority (e.g. a consultant occupational health physician, Trust medical director or director of public health), or where appropriate, the relevant regulatory body. Such cases are likely to arise very rarely. Wherever possible the health care worker should be informed before information is passed to an employer or regulatory body.”

A further GMC publication entitled "Serious Communicable Diseases" (1997) was in force at the relevant time. It covered a wider set of diseases than merely hepatitis B. Paragraphs 34 and 35 dealt with confidentiality in the following terms:

"Treating colleagues with serious communicable diseases

34.

If you are treating a doctor or other health care worker with a serious communicable disease you must provide the confidentiality and support to which every patient is entitled.

35.

If you know, or have good reason to believe, that a medical colleague or health care worker who has or may have a serious communicable disease, is practising, or has practised, in a way which places patients at risk, you must inform an appropriate person in the health care worker's employing authority, for example an occupational health physician, or where appropriate, the relevant regulatory body [expressly defined to include the GMC]. Such cases are likely to arise very rarely. Wherever possible you should inform the health care worker concerned before passing information to an employer or regulatory body.”

Paragraphs 59 and 60 of the 2001 edition of Good Medical Practice provided as follows:

"If your health may put patients at risk

59.

If you know you have a serious condition which you could pass on to patients, or that your judgment or performance could be significantly affected by a condition or illness, or its treatment, you must take and follow advice from a consultant in occupational health or another suitably qualified colleague on whether, and in what ways, you should modify your practice. Do not rely on your own assessment of the risk to patients .

60.

If you think you have a serious condition which you could pass on to patients, you must have all necessary tests and act on the advice given to you by a suitably qualified colleague about necessary treatment and/or modifications to your clinical practice”. ( emphasis added)

Paragraphs 59 and 60 were replaced, in the November 2006 edition of Good Medical Practice, by paragraph 79 which provides as follows:

"If you know that you have, or think that you might have, a serious condition that you could pass on to patients, or if your judgment or performance could be affected by a condition or its treatment, you must consult a suitably qualified colleague. You must ask for and follow their advice about investigations, treatment and changes to your practice that they consider necessary. You must not rely on your own assessment of the risk you pose to the patients ". ( emphasis added)

Having been informed by Dr. Hoy of the Appellant's position, on 21 July 2006, Dr. Phillips wrote to the Appellant informing him that she had become aware that he had been arranging tests through his GP. Dr. Phillips enclosed a copy of the 2000 Circular and the Implementation Guidance and pointed out, first, that viral load testing had to be undertaken though an occupational health service and at one of two designated laboratories, secondly that those whose viral loads exceeded 10³ genome equivalents per ml must not perform EPPs and thirdly that it is recommended that all infected health care workers be referred for specialist clinical assessment. The letter was copied to Dr. Baxter and Dr. Khan, the Appellant’s GP.

This letter made no reference to issues of employment history and merely requested the Appellant to contact Dr. Phillips. At that point in time, Dr. Phillips was not aware of any suggestion that the Appellant had stopped practising. Counsel for the Appellant, Mr. Mylonas ,suggested that this letter came as a complete shock to the Appellant and that he was most concerned about the apparent breach of confidentiality involved in the disclosure of his viral load testing.

Following this letter, the Appellant telephoned Dr. Phillips on two occasions in August. It appears that the first call took place on 1 August 2006. Dr. Phillips' evidence was that on both occasions she had asked the Appellant where he had previously worked. The content of the first call was summarised in Dr. Phillips' subsequent report prepared in August, and sent to Dr. Baxter, entitled "Summary of information on HepB positive healthcare worker" ("Dr. Phillips’ Summary") in the following terms:

"The [Appellant] called me on 1 August and we had a long conversation. He stated that he retired from work 2 to 3 years ago. He also said that the last time he did a locum was about 1 year ago. He came to the UK in 1967 and started work in Hull Royal Infirmary. ... He has worked in many places and been registered with many locum agencies, but he was only able to name one; Medact. He stated that he had been registered with a locum agency in Birmingham and one in County Durham. As he was expected to pay for the testing done through an agency, he has been asking his GP to send in specimens for viral load testing. A couple of agencies have arranged testing for him (he remembers County Durham doing this) but mostly he has been able to send in a copy of the lab result sent to this GP" The [Appellant] stated twice that he believes that the Birmingham laboratory are "cooking up" the results because the virologist there wants to stop all HepB positive HCWs from doing EPPs"

In her oral evidence to the Panel, Dr. Phillips confirmed that the Appellant had given two answers as to when he had retired: "he mentioned one year once and two to three years on another occasion".

As regards the second telephone conversation, Dr. Phillips' oral evidence was that the Appellant had not been very forthcoming with details about where he had worked. Counsel for the Respondent, Mr. Hare, pointed out that there is no evidence that, in these conversations, the Appellant ever raised the issue of the confidentiality of his medical records.

On a date before 9 August, Dr. Phillips sent Dr. Phillips’ Summary including the blood test results to Dr. Baxter. Dr. Phillips’ Summary referred expressly to the change in the relevant guidance introduced by the 2000 Circular, such that with effect from June 2001 e-antigen negative health care workers had to be tested and could be excluded from EPPs. After the passages concerning contact with the Appellant (set out above), the Summary contained the following further relevant passages:

" Liaison with HPA Birmingham

Virologist, Liz Boxall explained that there were no known cases of transmission associated with levels less than 10 ⁴ copies per ml i.e. there was a safety margin built in to the cut off limit. She advised that there was no need for a lookback exercise, but I feel we must get formal advice from the UKAP.

Outstanding issues

If the HCW does wish to undertake any more work as a surgeon, he must be assessed using the required procedures.

We should inform the GMC so they can make a decision on suspension pending further investigation.

There are clearly serious concerns about the competence and rigour of medical recruitment agencies"

On 9 and 10 August Dr. Baxter sought and obtained advice from Dr. Galuszka, an NCAS Adviser, forwarding the Phillips' Summary. The issues and action points discussed in their conversation on 10 August 2006 were recorded in a subsequent letter from Dr. Galuszka to Dr. Baxter sent on 18 August 2006, which stated, inter alia, as follows:

"[Dr. Phillips] interviewed the 69 year old doctor who says that he did his last locum about a year ago but you [Dr. Baxter] do not know whether to believe this or not as he appears from records at Doncaster to have had a number of tests recently.

...

You told me that [the Appellant] is not in permanent employment. He has been doing locum jobs for the past 20 years or so. You did not know what clinical activities these post involved. He has been going to his GP to get tests done. There has been no apparent Occupational Health assessment. [The Appellant] is reported to have limited insight into the situation. A UKAP form has been submitted and you await a response.

The matter was discussed with your regional DPH and epidemiologist. They suggested that you contact NCAS to determine whether a referral to the GMC is appropriate.

...

Case strategy and advice given

(1)

Further action by referring body

I advised you to refer this case to the General Medical Council. [The Appellant] appears to be in breach of the GMC Good Medical Practice document which states ... [and she then set out paragraphs 59 and 60]

... I would also suggest that you must consider issuing an alert letter if there is a possibility of the doctor's working elsewhere...

Please follow procedures laid down in relevant national guidance and locally agreed policies. As well as adherence to these, NHS bodies must always ensure a fair hearing at each stage. This includes ensuring that the practitioner knows what is said against him ..."

The concerns expressed in this advice were again essentially "future looking", although it is not clear whether the breach of paragraphs 59 and 60 concerned a past or a future breach. Dr. Galuszka drew attention to the need to ensure that the Appellant should know what was being said against him.

By letter dated 15 August 2006, Dr. Baxter wrote to the Appellant. In summary, Dr. Baxter asked the Appellant to stop EPPs until he had undertaken an occupational health assessment in compliance with the 2000 Circular and paragraphs 59 and 60 of Good Medical Practice (the terms of which he set out in full) The letter contained no reference to the Appellant's current or past employers. In his oral evidence to the Panel, Dr. Baxter explained the background to this letter, in the following terms:

"my concern was that if Dr. Saha had done in particular any exposure prone procedures that he may have put patients at risk , so on the advice of Dr. Colin Pollock, I contacted NCAS in the first instance for their advice and their clear advice back to me was that Dr. Saha had apparently failed in his good medical practice duties in terms of making appropriate or seeking appropriate occupational health clearance and testing for a condition which may have put patients at risk." (emphasis added)

In the letter itself, there was no reference to having put patients at risk in the past nor any reference to Dr. Boxall's advice that there was no need for a look back exercise.

Mr. Mylonas submitted that paragraphs 59 and 60 of Good Medical Practice were, by then, wholly irrelevant as the Appellant had retired and he had no patients. Mr. Hare commented, with justification, that in that letter, Dr. Baxter was asking for an assurance from the Appellant that he would not carry out EPPs without undertaking proper procedures and that Dr. Baxter was not asking the Appellant to stop practising altogether.

In response to this letter, the Appellant telephoned Dr. Baxter on 17 August 2006. Dr. Baxter's oral evidence at the Panel hearing was as follows:

"A. he phoned me at work on 17 August ... it was not a straightforward conversation in terms of an assurance to me based on my request to Dr. Saha. Dr. Saha talked to me in relation to his concerns about the disparity between tests between two laboratories, I think Birmingham and Coventry laboratories. I found it difficult to get assurance from Dr. Saha that he was not going to undertake any further exposure prone procedures. [He referred to exposure in Doncaster in 1993]... He did say that he did not intend to work again

Q. Did he make any further formal response to you at all about his intentions whether or not to work, in a letter or anything?

A.

No further definite confirmation in any letter, no. My overall impression from the conversation I had with him was that he did not intend to work, but I could not be sure of that because of his seeking further testing. I was not sure what his intentions were " ( emphasis added)

Again it appears that Dr. Baxter's principal concern was about the prospect of the Appellant working again in the future. The Appellant's account of the call, given in his subsequent letter of 28 September, was that Dr. Baxter was insisting on occupational health department screening, and that he, the Appellant, had said that that was unnecessary, when he had retired and was not looking for a job. Mr. Mylonas submitted that whatever the precise content of the call, it was all concerned with the prospect of the Appellant working in the future.

Dr. Baxter received advice from Dr. Pollock (and from Dr. Galuszka) that referral to the GMC was the next proper step. Accordingly, by email dated 18 August 2006, Dr. Baxter referred the matter to the GMC, Fitness to Practise section, in the following terms:

" Subject: Healthcare worker with hepatitis B: advice please

I am writing to you to ask for advice on whether you wish to investigate a doctor who is resident in Doncaster. The issue is complex and there are gaps in the information available to me (particularly in relation to his occupational history and no UKAP assessment yet) but the story is as follows. After an unusual request by an individual to the microbiology lab in Doncaster, Dr. Wendy Phillips the Director of South Yorkshire HPU was alerted by the local consultant microbiologist that the request had come from a health care worker who has worked as a locum surgeon on and off for the last 20 years who is hep B positive. It appears that of all the tests that are known to the laboratory none have been processed in the manner required for formal screening for occupational health purposes Wendy has interviewed the 69 year old doctor who says that he has not worked in the last year or so, and when I interviewed him he said that he had no intention of working again. We don't know whether to believe this or not as he appears from records at Doncaster to have had a number of tests recently ....

A UKAP assessment has been requested by Dr. Phillips but has not yet been received. We believe that the current stance with these cases is that a lookback exercise would NOT be recommended unless there was evidence of transmission to a patient. Dr. Phillips has been told by the reference laboratory that there are no documented cases of transmission from HCW to patient at a viral load titres less than 10 ⁴ . I contacted NCAS for advice and spoke to Dr. Margaret Galuszka. Her response is also attached.

...

... I wrote to the doctor reminding him of his Good Medical Practice responsibilities, reinforcing written advice from Dr. Phillips with regards to occupational health screening and asking him to confirm that before he undertakes any further exposure prone procedures he would seek occupational health clearance in accordance with the HSC. After a convoluted telephone conversation with him, he said that this would not be necessary as he had no intention of working again but I have no way of confirming whether this is his true intention

Also after discussion with deputy RDPH, Dr. Colin Pollock a decision was made not to issue an alert latter at this time as we do not believe that he currently presents a risk to patients.

I hope you can advise further. I look forward to hearing from you" ( emphasis added)

The email attached Dr. Phillips' Summary, the blood test result and the advice from Dr. Galuszka. In making this referral, Dr. Baxter was not making a "complaint" against the Appellant. Rather Dr. Baxter appeared to be seeking the GMC's advice. The principal concern remained the issue of preventing the Appellant from working in the future without compliance with proper procedures. Mr. Mylonas commented that, before referring the matter to the GMC, Dr. Baxter could have reverted to the Appellant to say that he was not satisfied with the outcome of the one call they had had.

By letter dated 7 September 2006, Mr. Richard Fowler, an investigation officer in the GMC's Fitness to Practise Directorate, wrote to the Appellant, enclosing Dr. Baxter's email of 18 August 2006 and its enclosures, in the following terms:

"I am writing to you to let you know that we have received the enclosed information about you from Dr. Tony Baxter ...

We need to review the information provided by Dr. Baxter and look at the concerns he has raised....

At this stage, you may provide any comments you wish to make on the information provided by Dr. Baxter. However, you are under no obligation to do so. If you do wish to comment, it would be particularly helpful if you could do so within the next four weeks. ...

I also need to contact your employer(s) to provide them with a copy of the complaint and to ask them to comment or provide any other relevant information. To do this, I need you to complete and return the attached form, giving details of all your current employers. Please complete and return the form to us by 15 September 2006. Of course, I will send you a copy of any additional information that I receive from your employers so that you will have an opportunity to comment on any further issues which they may raise.

A number of observations can be made about this letter. First, this letter was the first reference in correspondence to information concerning the Appellant's employers. Secondly, the letter was principally directed towards "current" employers (and was not directly concerned with "past" employers). The body of the letter itself was confined to information about the Appellant's "current" employers. The only, indirect, reference to past employers was the two specific categories mentioned in the enclosed standard form. On this basis, it is far from clear that the Appellant was being asked for information about his past employers, and certainly not all of them. Thirdly, Mr. Fowler did not give any explanation as to why he needed to know the identity of current employers (although in fact s.35A (2) does impose an obligation upon the GMC to make such an inquiry). Even if, which is doubtful, information about past employers was being sought, no explanation of the reason for that request was given. Fourthly, Mr. Fowler took no account of the fact that he had been told by Dr. Baxter that the Appellant was not working at the time, and thus the reference to "current employers" in the body of the letter is hard to understand. Fifthly, Mr. Fowler's reference in the letter to "a complaint" again failed to take account of the particular facts surrounding Dr. Baxter's referral.

On the same date, the Appellant telephoned Mr. Fowler. Then, on 22 September 2006, one week after the date for return of the form set in his first letter, Mr. Fowler wrote a chasing letter to the Appellant. The letter enclosed a further copy of the form, and asked him to return it by 29 September, reminding him of his obligation to provide the information. In that letter, the principal reference was to information about the Appellant's current employer. The letter neither refers to, nor takes any account of, the telephone call on 7 September.

By letter dated 28 September 2006, the Appellant responded to Mr. Fowler's letter of 7 September at some length. The letter stated, inter alia, as follows:

"I am puzzled as to why the issue of fitness to practice in medicine should be raised, when I have retired and stopped operating some 26 months ago.

I spoke to you over phone after I received your letter and discussed with you about the alleged complaint. ..

I should highlight the guide lines, produced by the Department of Health. It says that exposure prone procedures are not permitted to those health workers who carry e antigen in the blood or viral load, greater than 1000 units per ml, among the Hepatitis B surface antigen carriers. In view of the recent revelation in my blood test results, I could only practice outside of the exposure prone procedures, if I intend to come back to work in the NHS hospital . But I had stopped operating 26 months ago and I have decided long time ago against coming back to work before those results were known to me Under the present state of the controversial blood results, received from the two laboratories, I could not put my patient at risk of being infected, through my exposure prone procedures. It would be irresponsible if I breach that good medical practice, but that does not suggest to me that I should remove my name from the medical registrar. It would hurt me, in contemplating such course of action.

However I have retired from NHS work and I had never worked in private practice or in general practice in my life, since 1967. I do not know as to why Dr. Baxter had acted malicious way when he was not my employer nor did I ask him for any employment. I found very odd when I spoke to him in response to this letter. He was insisting on me, that I should attend to the occupational health department for screening; but I said that it was unnecessary, when I have retired and I was not looking for a job."

Significantly, whilst the Appellant referred to his recent blood results and asserted that he had decided against coming back to work "before those results were known", what he omitted to mention in that part of the letter was the position in the years 2000 to 2004 when he was still working and during which he had tested positive for hepatitis B; and most particularly his viral load of 2995 in August 2001 (by which time the 2000 Circular was fully in force). At the end of the letter he stated in manuscript that he believed that "the new revised regulation ... was issued last year". That belief was incorrect. The letter continued by asserting that the disclosure of his medical records by the Doncaster Virology department to Dr. Baxter was not authorised without his permission and that the disclosure in breach of confidentiality was in breach of good medical practice. The letter continued:

"Since my ex-employers had not complained to me or against my good medical practice to the General Medical Council, I am unable to disclose any of my past employments."

This last passage is important. First, it demonstrates that the Appellant himself understood that the GMC's request for information extended to his past employers, and secondly, it constitutes a clear refusal by the Appellant to provide such information to the GMC.

On 4 October 2006, the Appellant wrote a long letter to the President of the GMC, repeating much of what was contained in his letter to Mr. Fowler of 28 September 2006. This letter represented the start of a second "chain" of correspondence between the Appellant and the GMC, distinct from the correspondence with Mr. Fowler. The letter stated, inter alia, as follows:

"I am over 69 and stopped operating over 26 months. In 1993, I found I picked up Hepatitis B surface antigen and no e.antigen in my blood. This did not prevent me from carrying out the exposure prone procedures under the guidelines issued by the department of Health. But according to the regulations, exposure prone procedures are not permitted to those health workers, if the blood contains e.antigen. Nevertheless they are allowed to practice medicine outside of the exposure prone procedures. These regulations have not changed since.

Therefore, Mr. Fowler was wrong to harass me and he was wrong to assume that I was not permitted to practice medicine outside of the exposure prone procedure, despite the fact that my blood does not harbour e.antigens.

I believe since last year the regulation has changed and it states that exposure prone procedures are restricted to those health workers who have a viral load of Hepatitis B surface antigen within the limit of 1000 units per ml. But other health workers whose blood results show in excess of 1000 units per ml could continue medical practice outside exposure prone procedures. These are referring to non e.antigen health workers.

...

It does not matter to me, whether the viral DNA load found in my blood is either above or below the permissible limit, since I have retired and stopped operating the patients. this year I had arranged a routine cheque of my blood results. I did it myself through my GP with a view to reviewing the status of my liver." ( emphasis added)

Whilst it is not entirely clear what the Appellant was saying in this letter, the gist of it appears to be as follows: The guidelines setting viral load limits for those carrying out EPPs only came into force in 2005. Before that time, the 1993 guidelines applied and since he was e-antigen negative, he was permitted to carry out EPPs. Further the current guidelines did not apply to him since he had stopped operating in 2004. He had arranged recent blood test "with a view to reviewing the status" of his liver. However what the Appellant does not say in this letter is that he had not in the past carried out EPPs in any period in which his viral load exceeded the 10³ limit. By that stage, the Appellant knew or, at the very least, had the means of knowing, that the new guidelines were dated 2000 and that if he had been conducting EPPs in 2001, it appears very likely that he had been acting in breach of the 2000 Circular. By this time the 2000 Circular and the Implementation Guide had been specifically drawn to the Appellant's attention by both Dr. Phillips and Dr. Baxter. The Appellant had also been provided with a copy of Dr. Phillips' Summary which expressly referred to the fact that the 2000 Circular was fully in force by June 2001 at the latest.

Mr. Fowler wrote to the Appellant again on 26 October 2006, in the following terms:

"I write further to my letters of 7 September 2006 and 22 September 2006 regarding the information received about you from Dr. Baxter. I asked you to send details of your employers and previous employers but I have not yet received the details requested.

We require details of your employers and previous employers in order to enable us to reach a decision on this matter as quickly as possible. Please note that you have a professional obligation to provide this information in accordance with 'Good Medical Practice', Paragraph 30 ... [paragraph 30 is then set out]

.. You also have a duty to keep us informed if you change employers while we are reviewing the concerns raised by Dr. Baxter. I have enclosed a further copy of the form for you to complete...” ( emphasi s added)

This letter made no reference at all to the Appellant's response, dated 28 September, to Mr. Fowler's first letter, and Mr. Fowler continued to ignore the Appellant's statements that he was no longer employed. However, in this letter, Mr. Fowler made an express request, for the first time, for information about previous employers. No explanation was given as to why previous employers had now been added in. The Appellant never replied to this letter. He did not respond either by saying that he had no current employer or by asking for an explanation of the reason for the request for information concerning his previous employers.

15 November 2006: Jackie Smith, GMC to the Appellant

By letter dated 15 November 2006, Ms Jackie Smith, head of investigations in the GMC's FTP Directorate wrote to the Appellant, replying to his letter to the President of 4 October 2006. The letter makes no reference to Mr. Fowler's letter of 26 October:

"As you know on 18 August 2006 Dr. Tony Baxter ... sent us information regarding your Hepatitis B status. This information included concerns that you had not undergone appropriate occupational health screening while working as a locum consultant surgeon. As I am sure you will appreciate, an allegation that a doctor conducting exposure prone procedures in the knowledge that he or she has a serious communicable disease and without undergoing appropriate occupational health screening is extremely serious; and, if proven, would amount to a breach of paragraphs 59 and 60 of Good Medical Practice. ... The decision to investigate was based on the seriousness of the allegations .

Section 35B of the Medical Act 1983, as amended, requires us to disclose information we are investigating to a doctor's employer(s). On 7 September 2006 Richard Fowler wrote to you ... asking for your employment details. In particular, the form enclosed with the letter asked you to include the details of all locum agencies through whom you had engaged in any work during the last five years. Mr. Fowler highlighted your professional obligation to provide this information in line with Good Medical Practice.

Apart from our statutory duty under Section 35B of the Medical Act to disclose to any employers, including locum agencies, we also need details of your employment history to investigate the allegations brought to our attention. We asked for your consent to obtain your medical records, given the issues Dr. Baxter had raised, and you have exercised your right not to consent.

You have questioned our decision to investigate, as you are no longer practising. Mr Fowler has explained that you are entitled to practise, should you wish to do so, as your name remains on the Medical Register. You do not wish to apply for voluntary erasure and our investigation must therefore continue: serious allegations regarding your health and conduct have been brought to our attention, which could (and I put it no higher than that) have put patients at risk ... ... having considered the seriousness of the information that Dr. Baxter sent to us, we decided to investigate in line with our statutory powers. So far as Dr. Baxter's actions are concerns, I suggest you raise your concerns direct with him.

I hope this letter helps you to understand why we are investigating. If you wish to reconsider applying for voluntary erasure, please let Mr Fowler know. Otherwise , I would be grateful if you completed the employer details form in line with your professional obligations" ( emphasis added)

This is an important letter. By this stage, the emphasis had shifted to information about past employers. Moreover, this letter referred, for the first time, to concerns about the Appellant's past conduct, in particular to the possibility that the Appellant had worked as a surgeon without undergoing occupational health screening and had thus, in the past, been in breach of paragraphs 59 and 60 of Good Medical Practice. In that context, there was also reference to the possibility that this past conduct might have put patients at risk (despite the advice received earlier from Dr. Boxall). On the other hand, Ms. Smith also effectively said that if the Appellant were to apply for voluntary erasure, he would not have to complete the form and the investigation would not continue. This suggests that the underlying purpose was to prevent the Appellant from practising in the future. As regards Ms. Smith's reference to s.35B of the Act and disclosure to past locum agencies, s.35B(1)(b) applies only to a current employer or current locum agency: see paragraph 80 below.

The Appellant responded to Ms. Smith by letter dated 20 November 2006. He indicated that he was about to leave the country for a long winter holiday and stated:

"I have not breached the good medical practice and I had not been admitted to the hospital at any time since 1968, nor had I been off sick or off at work with any kind of illness. Hence I have nothing to disclose but I want to retain my fundamental right in response to your demand. Furthermore, since 1993, pre-employment health screening by the occupational health department of the Trust has been a condition before the applicant is employed to the exposure prone procedure. And I had never been declared unfit to be employed for such job, nor did I receive any complain from those employers after I finished my contract"

The letter continued by asking questions directed to Dr. Baxter including questions about disclosure of his medical records and asking Dr. Baxter to disclose "the specific evidence that could interfere with my fitness to practise.”

Whilst this letter appears to be a denial of any past breach of paragraphs 59 and 60, and whilst the Appellant seeks to give the impression that he had pre-employment health screening, once again he omits to refer to his viral load tests in 2000 and 2001 and the concern that he appeared to have been carrying out EPPs at that time.

On 1 December 2006, Mr. Fowler wrote again to the Appellant. This letter makes no express reference to the most recent correspondence in November between the Appellant and Ms. Smith, nor appears to take any account of the Appellant’s statement that he would be out of the country.

"I write further to my previous correspondence regarding the information we have received from Dr. Baxter.

You will be aware that you have been referred to the GMC because of a concern that you may have been working while Hepatitis B positive and that as you were employed as a locum surgeon your medical condition presented a risk to patients.

You have not provided details of your employers and have refused access to your medical notes. T herefore it has not been possible to establish the date of your diagnosis and whether you continued to work after this date .

I acknowledge that you have stated that you no longer intend to work as a doctor. However, while you remain fully registered to practise you remain able to continue to seek employment as a surgeon. Accordingly, I enclose the relevant forms for you to make an application for voluntary erasure from the GMC Register in line with your stated intention not to practice again." ( emphasis added)

This letter was neither a request for information, nor an indication of referral to the Panel. Rather, by this letter, Mr. Fowler offered the Appellant the opportunity to apply for voluntary erasure. For the first time, Mr. Fowler suggested that the relevant concern was past working whilst hepatitis B positive and consequent past risk to patients. Mr. Hare submitted that, by this time at the latest, information had been provided to the Appellant to make it crystal clear why he had been asked to provide information about past employers.

By letter dated 4 December 2006, the Assistant Registrar of the FTP Directorate gave the Appellant formal notice under rule 7 of the Rules, informing him that the preliminary investigation had been concluded, of the referral of allegations to case examiners under Rule 8 of the Rules and inviting comments on the allegations. The allegations concerning fitness to practise were set out in a schedule at Annex A. By paragraphs 4 and 5 of Annex A, it was alleged that the Appellant "did not comply" with paragraph 79 of Good Medical Practice (2006). Paragraphs 6 to 9 then alleged failure to give details of current employers and medical records; and it was this latter conduct which gave rise to the misconduct and/or impairment of fitness to practice. Whilst the relevant misconduct was, directly, the failure to comply with information requests, nevertheless the alleged breach of paragraph 79 constituted the background and reason for the information requests which in turn gave rise to the misconduct.

Mr. Hare submitted that the terms of the draft charges show that the GMC considered that the information sought was relevant to past breach and past risk of infection. Mr. Mylonas argued that the reference to paragraph 79 can only be read as a reference to recent or future conduct. The draft allegations contained no express reference to past employers or to risk of past infection. It is not clear to me when the breach of paragraph 79 was alleged to have taken place: during the period before 2004 when he was working or more recently when Dr. Baxter had contacted him.

By letter dated 11 December 2006, Mr. Peter Lynn of the FTP Directorate replied, on behalf of Ms. Smith, to the Appellant's letter of 20 November, reminding him of Ms. Smith's reference to the possibility of him having put patients at risk and pointing out that the Appellant remained free to practise, despite his having stated that he had no current intention to do so. He pointed out that the Appellant had not provided his employment details, which the GMC had a statutory obligation to request, and finally, he suggested that the Appellant contact Dr. Baxter directly to deal with the questions the Appellant had asked. The reference to the "statutory obligation" to request employment details can only be a reference to s.35A(2) of the Act. However, as explained below, that provision applies only to current employers and not to past employers.

On 18 December 2006, the GMC's Interim Orders Panel made an interim order, placing interim conditions limiting the Appellant’s practice.

Some months later , and apparently without any reference to the ongoing procedure between the Appellant and the GMC, Dr. Phillips wrote the following further letter to the Appellant, with copies to Dr. Baxter and Dr. Pollock:

" Advice re possible risk to previous patients operated on

I have taken advice from the United Kingdom Advisory Panel on Healthcare Workers Infected with Bloodborne Viruses (UKAP) about whether your surgical work may have put any patients at risk. They have recommended that I obtain an employment history from you so we can check whether there are any cases of hepatitis B which could be linked to surgery carried out by yourself.

By letter dated 13 March 2007 from Fiona Garry, Assistant Registrar in the FTP Directorate, the Appellant was notified of the decision of the case examiners to refer the allegations for determination by an FTP panel. The letter sets out the case examiners' reasons, which refer to paragraphs 59 and 60 of Good Medical Practice and then continued:

"The doctor has not complied with requests from the GMC to provide details of his employers either present or previous and has provided no evidence of seeking occupational health advice. He has stated that he is now retired from practise but is still on the medical register"

In face of non compliance with reasonable requests for information and further assessment in this case of potential infectious disease in a medical practitioner the Case Examiners have no option but to refer this case to a FTP panel in order to protect patient safety"

By letter dated 13 September 2007 from Fiona McQueen, Assistant Registrar, the Appellant was given formal notice of the Panel hearing in Manchester on 15 October 2007, setting out the allegations against him. The allegations, at paragraphs 1 to 6, record the specific facts relating to the Appellant being hepatitis B positive and recording results of blood tests over the limit in June 2000, August 2001 and June 2006. The allegations continued:

"7.

On 7 September 2006, Richard Fowler, an Investigation Officer employed by the General Medical Council, Fitness to Practise Directorate wrote to you by letter requesting you provide details relating to your employment;

8

On 28 September 2006, you wrote a letter to Richard Fowler and refused to disclose any of your past employments;

9.

You indicated that you had last performed a surgical operation in August 2004;

10.

On 26 October 2006, Richard Fowler again wrote to you requesting details of your employers and previous employers

11.

You failed to provide details of your employers and previous employers.

12.

By your conduct referred to in 8. and 11 above you failed to co-operate fully and provide relevant information in connection with an investigation into your conduct.

13.

Your failure to co-operate and provide relevant information referred to in 12 above was

(a)

in breach of Good Medical Practice;

(b)

not in the best interests of your patients

(c)

likely to undermine the confidence of the public in the medical profession;

And that by reason of the matters set out above your fitness to practise is impaired because of your misconduct."

The hearing before Panel took place over four days. The GMC was represented by counsel; the Appellant had no legal representation, although it became clear that he had had access to legal advice at some stage. The Appellant did not give evidence on oath, but put his case by way of argument. He was informed that the Panel might not attach as much weight to submission as it would to evidence on oath. Drs. Phillips, Baxter and Hoy gave evidence, and were cross-examined by the Appellant. As required by Rule 17, the hearing was divided into three formal stages: facts, impairment and sanctions, with the Panel making distinct determinations at each stage.

Each of the three determinations was pronounced by the Panel during the course of the hearing. On 17 October 2007 the Panel made its findings of fact, finding that each of the 13 numbered allegations (set out above) had been proved. These included the finding of breach of paragraph 30 of Good Medical Practice and the other elements of allegation 13. On 18 October 2007, the Panel made separate determinations on impairment and on sanction. By letter dated 19 October 2007 to the Appellant, the GMC confirmed the outcome by setting out each of the determinations in writing.

In the determination on impairment, the Panel recited once again the findings of fact and then continued (effectively re-iterating allegations 12 and 13):

"The Panel has found that, by your conduct in refusing to disclose any of your past employments and your failure to provide details of your employers and previous employers, you failed to co-operate fully and provide relevant information in connection with an investigation into your conduct.

The Panel found that these failures were in breach of Good Medical Practice , not in the best interests of your patients, and likely to undermine the confidence of the public in the medical profession."

The determination then referred to Dr. Phillips' letter of 31 July 2006 and Dr. Baxter's letter of 15 August 2006 and continued

“The Panel heard that you did not provide this confirmationI [i.e. that the Appellant would not undertake any EPP work until he had a formal assessment] and that this led Dr. Baxter to refer his concerns to the GMC.

The Panel recognise that the case is not about whether any patient has been infected with Hepatitis and heard that there had been no evidence of infected patients and that the risk is very low.

Dr. Phillips wrote to you again on 6 February 2007 [passage set out]

Despite this you did not provide any information about your employment history"

Then after setting out paragraph 30 of Good Medical Practice, the Panel continued as follows:

"In deciding whether your fitness to practise is impaired, the Panel has had regard to the Indicative Sanctions Guidance , in particular page S1-2, paragraph 11 which states:

"the GMC's role in relation to fitness to practise is to consider concerns which are so serious as to raise the question whether the doctor concerned should continue to practise either with restrictions on registration or at all"

The Panel then referred to the Appellant's own letter to Mr. Fowler dated 28 September (citing those passages where he had said he had stopped operating and he was unable to disclose past employments because there was no complaint from ex-employers) and to the Appellant's argument that he did not have sufficient knowledge and understanding of the requests and that GMC was not justified in requesting the information. The Panel then continued:

"The Panel considers that the serious concerns raised by Dr. Hoy, Dr. Phillips and Dr. Baxter were more than sufficient grounds for the GMC to request information in order to pursue its inquiry. In any event, you are legally obliged to co-operate with the GMC, in accordance with Good Medical Practice and section 35A of the Medical Act 1983, as amended.

The Panel is concerned that you did not co-operate with the GMC, a regulatory body whose role it is to maintain standards in the profession and uphold public confidence. The Panel considers that even if you did not have complete records you should have attempted to provide an indication of your employment history to demonstrate your co-operation and concern for any potential risk to patients.

The Panel is satisfied that your conduct was not in the best interests of your patients, undermined the confidence that members of the public place in the profession and that you have breached fundamental principles of Good Medical Practice . The Panel has determined that your fitness to practise is impaired by reason of misconduct"

After hearing submissions on sanctions, the Panel announced its decision that the Appellant's name be erased from the Medical Register. In giving its reasons, the Panel referred to its duty to act in the public interest and to the fact that the Appellant had apologised for causing the GMC concern. As regards the imposition of conditions, the Panel stated:

"His repeated failure to co-operate with the GMC over the period of one year amounted to a serious departure from Good Medical Practice , and for this reason the Panel considers that it is not appropriate to impose conditions. Furthermore the Panel did not consider that there were appropriate and practical conditions that could be applied in this case.”

In relation to a sanction of suspension, the Panel stated:

"The Panel is concerned that Dr. Saha still does not understand the seriousness of his misconduct and has not shown any insight into his failure to co-operate."

After referring to the familiar passages from the cases of Bolton and Gupta (cited in Raschid) about the reputation of the profession and maintaining confidence and standards in the profession, the Panel continued:

"Although the Panel notes that Dr. Saha has no previous findings against him, it concluded that the imposition of a period of suspension would not reflect the seriousness with which it views his failure to co-operate and would not adequately protect the public or the public interest.

The Panel regards Dr. Saha's misconduct as fundamentally incompatible with continuing to be a registered practitioner.”

Then after referring to the criteria for erasure in ISG at page S1-15, the Panel concluded:

“The Panel considers that Dr. Saha has seriously departed from the relevant professional standards as set out in Good Medical Practice. He has had numerous opportunities to co-operate and has failed to do so. Furthermore, he has shown no insight into the seriousness of his actions or their consequences during these proceedings."

The Appellant appealed to this Court by Notice of Appeal filed on 29 November 2007 (time for filing having been extended retrospectively by Goldring J (as he then was) by order dated 1 August 2008). By the appeal, the Appellant seeks an order quashing the Panel's decision of erasure. The appeal is against the finding of misconduct and in any event against the sanction of erasure. The initial basis and grounds of appeal were contained in a document attached to the Notice and raised a number of points. However, as pointed out by Mr. Hare in his supplementary skeleton argument, some of these points were not pursued in the Appellant's written Opening Submissions and in oral argument.

The Appellant's case, as ultimately put in argument, is as follows:

The Respondent's case in summary is as follows:

Accordingly, the issues that fall for determination can be summarised as follows:

In written submission and at outset of the oral argument, the Appellant's case placed much reliance upon the claim that the disclosure of his hepatitis B positive status and of his viral load test results constituted a serious breach of his rights to confidentiality in that information. Mr. Mylonas relied upon Article 8 of the European Convention on Human Rights ("ECHR") and the case of Z v. Finland (1997) 25 EHRR 371, where in a case involving disclosure of the medical records of HIV infected patients, the ECtHR held that there had been a violation of Article 8. His argument proceeded as follows. In disclosing the Appellant's medical records, Dr. Hoy, Dr. Phillips and Dr. Baxter breached his right to confidentiality; the GMC's requests for information were based upon medical records unlawfully obtained and, for this reason, were themselves unlawful; and thus, since the Appellant was only obliged to respond to someone "entitled to ask", any failure to answer the GMC's requests did not breach paragraph 30 of Good Medical Practice or any other obligation to answer.

However by the close of argument and in the light of Mr. Hare's submissions on the issue of confidentiality, Mr. Mylonas fairly accepted that this argument could not succeed. In my judgment he was correct to do so. Given Mr. Mylonas' concession, I can state my reasons quite shortly.

First, there was here no relevant breach of confidentiality. As far as English domestic law is concerned, I was referred to W v. Egdell [1990] Ch 359, A v. GMC [2004] EWHC 880 (Admin) esp at §§36-44 and Woolgar v. Chief Constable of Sussex Police [2000] 1 WLR 25 at 36F-H. Medical confidentiality is not an absolute right, but necessarily involves a balancing of competing public interests. The public interest in patient safety and welfare is an extremely important consideration. A further highly relevant consideration is the persons to whom the disclosure has taken place or is envisaged; disclosure to a person who is aware of the confidentiality and who has a role in its consideration or evaluation (such as a health care worker) is to be distinguished from general disclosure or publication. The relevant law on confidentiality in the context of health care regulation is summarised in Glynn and Gomez: Fitness to Practise: Health Care Regulatory Law, Principle and Process at §§13-022 to 13-025, concluding:

"Disclosure to a local authority, or another doctor, may be a proportionate response that is justified in the overall public interest, whereas a wider disclosure would not be. In most cases, the balancing exercise will come down in favour of disclosure to a health care regulator, even where the records concerns a child"

The ECtHR decision in Z v. Finland does not assist the Appellant. Under Article 8, an interference with a right to confidentiality may be justified by reference to a number of interests, including public safety, protection of health or protection of rights and freedoms of others. On the facts of Z, the ECtHR found that there was no violation of Article 8 in so far as the case involved the compulsion of medical advisers to give evidence about their patients' medical condition in criminal proceedings or the seizure of medical records by the police. The finding of infringement of Article 8 arose only in respect of the distinct decisions to allow further public disclosure of medical records. The position under Article 8 and in Z is consistent with the position under domestic law described above.

In the present case, both the GMC's publication "Serious Communicable Diseases" and the Implementation Guide make express provision for the disclosure of the medical condition of a health worker by others within the medical profession. Paragraph 35 of the former publication (set out in paragraph 26 above) required a health worker to inform an appropriate person (including an occupational health physician and the GMC itself) where a colleague with a serious communicable disease is practising or has practised in a way which places patients at risk. Paragraphs 19 and 20 Implementation Guidance, whilst seeking to protect the right to confidentiality of hepatitis B infected health care worker, also provides that where there is or has been a risk to patients, it may be necessary to give the employer access to confidential information, and further imposes a duty upon other health care workers to inform an appropriate person where there is reason to believe that a hepatitis B infected worker has not followed advice.

In these circumstances, in my judgment, the disclosure by the three doctors of the Appellant's records, ultimately, to the GMC was justified by reference to the concerns that each of them had at the relevant time, and indeed each was under a duty to do so.

Paragraphs 35 and 20 above respectively advise that the infected worker should be informed before the information is passed on to an employer or regulatory body, "wherever possible". In the present case, the Appellant was not informed, in advance, that the GMC were going to be told. In my judgment, it would have been far preferable for Dr. Baxter to have informed the Appellant that he was going to refer the matter to the GMC before he in fact did so. But Dr. Baxter did raise his concerns with the Appellant and substance of the issue. The Appellant had also been provided with a copy of the Implementation Guidance and thus had the means of knowing that Drs. Baxter and Phillips had a duty to disclose. Given the purpose for which the information was disclosed and the limited persons to whom it was disclosed, any failure on the part of Dr. Baxter to pre-warn did not mean that in so doing Dr. Baxter breached the Appellant's right to confidentiality

Secondly, even if there had been some breach of confidentiality by the three doctors, this breach would not, without more, have rendered subsequent requests by the GMC unlawful. Mr. Mylonas accepted that there was no basis upon which he could make an argument based on the principle of "the fruits of the poison tree". I accept Mr. Hare's submission that the GMC has an independent statutory duty, under s.1(1A) of the Act, to protect the public and would have been required to act on information received, even if there had been a breach of confidentiality in the course of its receipt.

Eventually, Mr. Mylonas' argument on confidentiality was expressed on the basis that the fact that there had been a breach of confidentiality, or indeed that the Appellant himself genuinely believed that there been such a breach, was a relevant circumstance to be taken into account in assessing whether there had been misconduct or impairment or on the question of sanction. I deal with this argument in the context of issue (2) below.

This is the nub of the Panel's findings of impairment by reason of misconduct. The Panel found that the information which the Appellant failed to provide was "details of your employers and previous employers" in response to the GMC's letters of 7 September 2006 and 26 October 2006. I deal therefore, in turn, with the position as regards the Appellant's then current employers and then with the position relating to his past employers.

Before doing so, I make some observations about the conduct of the GMC and of the Appellant in the course of the events which give rise to this finding.

As far as concerns the GMC, some of the criticisms made by the Appellant, including made by Mr. Mylonas on his behalf, of the way in which the GMC handled matters from September 2006 onwards are, in my judgment, justified. At times, the GMC was neither clear nor consistent in the nature of the information that it was requesting from the Appellant nor in stating the nature of the investigation being carried out nor the underlying concerns which the GMC had. This was particularly so as regards whether the GMC's concerns related to the prospects of the Appellant practising in the future or, rather, to historical events and matters arising from his past practice. Moreover, at times, those conducting the investigation at the GMC did not appear to be responsive at all to communications from the Appellant. For example, Mr. Fowler, in directing his inquiry to current employers in his letters of 7 September and 26 October 2006 appears to have failed to acknowledge the fact that he had been told, not just by the Appellant, but also by Dr. Baxter, that the Appellant had retired and thus did not have any "current employer". Moreover his letter of 7 September did not expressly seek information about the Appellant's previous employers, yet by the time of the 26 October letter, such a request was made in the body of the letter, without any acknowledgment that the focus of the inquiry had shifted and without any explanation as to why.

In my judgment, and particularly in view of the unusual, procedural, nature of the "charge" under paragraph 30 in the present case, it would have been better if the GMC had formulated its request for information with more precision and care, and with the wording of paragraph 30 in mind; for example, by stating clearly and consistently, the nature of the investigation into the Appellant's own conduct or health, the nature of the information sought, and, if only in broad terms, why that information was considered to be relevant to that investigation.

Whilst one might have some sympathy for the Appellant in the face of these criticisms of the GMC, any such sympathy has to be set against two highly significant aspects of his own conduct; aspects which it is reasonable to infer are connected. First, the Appellant has, at no time, been prepared to give the information sought about his past employers. His reasons for not doing so have been quite inconsistent throughout the process. Secondly, at all times he has avoided addressing the question of whether, in the past, and in particular in 2000 and 2001, he had been conducting EPPs at a time when his viral load exceeded 10³ per ml and thus in breach of the 2000 Circular (and paragraph 59 and 60 of Good Medical Practice). Indeed, at times, it can be seen that the Appellant was directly avoiding dealing with that question (for example by concentrating on his viral load tests in 2006 and by twice suggesting, incorrectly, that the 10³ limit had only been introduced in 2005). Whilst the evidence strongly suggests that he was conducting EPPs, the fact and details of any such conduct remained unknown to the GMC - and this is information which the GMC was fully entitled to ascertain from the Appellant. Further, even taking full account of the Appellant's ability to express himself in English and his own legitimate personal sensitivity at being subject to investigation about his hepatitis B status, in my judgment these do not explain the fact that his attitude, towards both the GMC and the doctors involved earlier, was uncooperative and obstructive.

In my judgment, the Panel was not justified in finding that the Appellant had failed to provide information about his then current employer or employers. There is, and was before the GMC, no evidence that, at any time from 7 September 2006 onwards, the Appellant was employed at all. Furthermore, having previously told Drs. Phillips and Baxter, the Appellant, in his letters to the GMC of 28 September and 4 October, stated expressly that he had retired from practice. The GMC failed to acknowledge these statements in its request of 26 October. Whilst the GMC may legitimately have had concerns that the Appellant might commence practice again in the future, it had no reason to believe that at that time the Appellant was in fact employed. Thus, on these facts, in my judgment it cannot be said that he failed to give "details of his employers" in so far as that related to his current employers. To that extent, the finding of the Panel cannot be upheld.

Further, as regards s.35A(2) of the Act, if and in so far as the Panel found in its decision that the Appellant had acted in breach of that statutory provision, in my judgment such a finding is also unwarranted. In my judgment, s.35A (2) imposes an obligation only in respect of a practitioner's current employers or an employment agency to whom he is contracted at the time of the request for information. This appears from the use of the present tense in sub-sections (a) and (b) of s.35A (2). It does not extend to information about employers in the past; not least because s.35A(2) falls to be read in the context of the GMC's obligation in s.35B(1)(b) to inform a practitioner's current employer of the fact that an investigation is ongoing.

As regards the Appellant's past employers (including locum agencies through whom he was placed), the GMC did request the Appellant to provide such information, at least by the time of Mr. Fowler's letter of 26 October 2006. The body of the letter of 7 September 2006 made no reference to previous employers, although the standard form, enclosed with that letter, does request some limited information about previous employment. Further, at no time since the letter of 26 October 2006 did the Appellant provide information about his past employers. Indeed he stated clearly in his letter of 28 September 2006 that he would not do so. The issue therefore is whether his failure to do so amounted to a breach of paragraph 30 of Good Medical Practice. That in turn raises the following questions:

Relevance to the investigation

In the course of the correspondence and of argument before me, a number of different characterisations of the "investigation" and of the grounds for the relevance of the information concerning the Appellant's past employers were raised. These included, first, the risk that in the past patients had been infected with hepatitis B as a result of contact with the Appellant; secondly, a concern to ensure that in the future the Appellant did not conduct EPPs without complying with the proper screening and testing procedures, such that future patients might be put at risk; and thirdly, an investigation as to whether, in the past, the Appellant had failed to comply with the regulatory requirements imposed upon a hepatitis B infected health care workers as regards proper screening procedures.

As regards the risk of past infection, in my judgment, the information sought was not, and certainly not clearly, relevant to such an issue, even if, which is far from clear, this was the purpose of the GMC's investigation. First, from an early stage, Dr. Phillips had received advice from Dr. Boxall that, given the specific viral loads of the Appellant, there would in any event be no need for "a look-back exercise". This advice was passed on to Mr. Fowler and to the Appellant at the time. The "concerns" of Dr. Baxter, referred to in the 7 September letter do not include the risk of past infection: those concerns are to be found in Dr. Baxter's email of 18 August, where he expressly stated that a "lookback exercise would NOT be recommended". The Panel was referred to Dr. Boxall's advice and itself accepted in its determination that "the case is not about whether any patient has been infected with Hepatitis and heard that there had been no evidence of infected patients and that the risk is very low." As regards Dr. Phillips' letter sent some months later (in February 2007) which does refer to the risk of past infection, this was not sent by the GMC or under the auspices of the GMC's request for information and there is no explanation as to how it came to be sent. The Panel does refer to it in its determination on impairment, but in a fashion inconsistent with its conclusion about past infection. What is more there was no reference at all to the risk of past infection in the GMC's letters of 7 September and 26 October 2006, nor in Dr. Phillips' or Dr. Baxter's earlier letters. In my judgment, given this evidence and the Appellant's levels of viral load, I am not satisfied that information about past employers was relevant for the purposes of carrying out an investigation, in this case, into the risk that, in the past, patients had actually been infected by contact with the Appellant.

As regards the risk of future infection (arising through the Appellant conducting EPPs without proper screening), it is clear that this was a risk which the GMC had in mind at the time and one which underlay Dr. Baxter's concerns which formed the foundation of the investigation: see letter of 15 August 2006, Dr. Phillips’ Summary and Dr. Baxter's email of 18 August 2006. However, in my judgment, it is hard to see how information as to the Appellant's past employers was directly relevant to this "future" risk.

However, the third aspect of relevance, past breach of regulatory requirements, provides a link between past and future conduct on the part of the Appellant. Even if, because the Appellant's levels of viral load were below the 10⁴ limit there was no direct risk of past infection, nevertheless the fact that he may, in the past, have conducted EPPs whilst being over the 10³ limit and without taking independent advice and testing would itself have been in breach of the 2000 Circular and a breach of paragraphs 59 and 60 of Good Medical Practice. In turn, such a past breach of paragraphs 59 and 60 would be relevant for the purposes of assessing the risk that, in the future, the Appellant would conduct EPPs without going through proper procedures and thus commit further breaches of paragraphs 59 and 60, and thereby put patients at risk in the future. The critical aspect of the information available to the GMC at the time was that it appeared that in 2000 and 2001 the Appellant was still practising as a surgeon and that, at the same time and to his own knowledge, he had had viral load tests (conducted privately through his GP) showing him to be in excess of the 10³ limit. In this way, from the GMC's point of view, the Appellant's past conduct raised a "regulatory" issue, distinct from any "medical" issue that might arise from a risk of past infection. In this way the GMC's inquiry was whether or not the Appellant had in the past complied with the rules as to what are appropriate safety limits. In this connection, Ms. Smith's letter of 15 November 2006 is an important letter. It suggested that the relevant "allegations" regarding the Appellant's conduct were, or included, an allegation of carrying out EPPs in the past with knowledge of an existing serious communicable disease and without proper screening and that such conduct would amount to a past breach of paragraphs 59 and 60 of Good Medical Practice.

In my judgment, in this way, the GMC's investigation encompassed a concern relating to the Appellant's past conduct in carrying out EPPs whilst carrying a viral load in excess of the 10³. It follows that information relating to the Appellant's past employers was indeed relevant to such investigation.

As to whether the GMC itself at the time considered this information to be relevant for this particular reason, it is not immediately obvious that at the outset this was the purpose for requesting information about past employers. In the letters of 7 September and 26 October 2006, there is no reference to paragraphs 59 and 60 of Good Medical Practice, let alone to the question of a past breach. However the point is referred to expressly in the second paragraph of Ms. Smith's letter of 15 November 2006. By this time it appears that the GMC was considering this basis of relevance. On the other hand, the next letter of 1 December appears to revert to the risk of past infection. Moreover it is not clear to me that the reference to paragraph 79 of Good Medical Practice (2006), at Annex A to the letter of 4 December 2006, is a reference to the Appellant's past conduct in 2000 and 2001. In any event, it seems to me that, even if this basis of relevance was never formulated in the GMC's "collective" mind to this degree of precision, this would not be a ground for setting aside the Panel's findings. As I have found, the information sought was relevant on this basis, and it follows that, subject to the following issue, the Appellant did in fact fail to provide "relevant information" within the meaning of paragraph 30 of Good Medical Practice.

Mr. Mylonas submitted that, despite having asked for an explanation of the purpose of the request for information about past employers, the GMC never provided one.

First, the question arises as to whether the GMC was legally obliged to inform the Appellant of the purpose behind the request. Mr. Hare submitted that the GMC was under no such duty to provide reasons for its requests for information, arguing that in many cases the GMC will not be able to provide reasons without risking disclosure of confidential information about patients, and contending further that the Appellant's duty to provide information was not dependent upon the GMC demonstrating cause for its inquiry. In my judgment, there certainly must exist "cause" for an inquiry. As to whether that cause must be explained to the subject of the inquiry is less clear to me and is a question upon which, in the present case, a definitive answer is not necessary, for the reasons set out below. There may be cases when the GMC must be entitled not to give details of the underlying reason. However, where there is no good reason not to inform the practitioner, my view is that the GMC should give an explanation at the time of the request. Furthermore, as Mr. Hare accepted, where the practitioner expressly asks the GMC to provide such an explanation, then in my judgment the GMC would be required to respond (subject to confidentiality concerns).

Secondly, in the present case, the Appellant did not in fact ask the GMC for an explanation of the relevance of the request for information about past employers. As appears from his own letter of 28 September, although the Appellant knew that he was being asked about past employers, he did not ask for any explanation. Whilst the Appellant did raise a number of complaints (including breach of confidentiality and questions to be put to Dr. Baxter), at no point did the Appellant question why he had been asked about his past employers.

Thirdly, even though the relevance of past employers was not clearly communicated to the Appellant initially and even though the GMC certainly could have expressed itself more clearly and consistently, I am satisfied that the GMC did eventually, effectively, explain the reason for the request. I accept that there was no reference to the past breach of paragraphs 59 and 60 in either of the two letters from Mr. Fowler in September and October. However, as indicated above, this basis of relevance was mentioned later, and in particular in Ms. Smith's letter of 15 November 2006.

Mr. Mylonas contended that these later GMC communications do not assist the GMC, since the specific allegations before the Panel comprised a failure to respond only to the GMC's letters of 7 September and 26 October 2006; there was no finding of failure to respond to the 15 November letter. However, in my judgment, even so, the later GMC letters are relevant as to existence and communication of the relevance of the information because (a) the Appellant's failure to respond to the September and October letters was ongoing right up to the Panel hearing in October 2007 and (b) the GMC was entitled to supplement its reasons in the period during which the request relating to past employers remained outstanding. After receipt of these further reasons in November 2006, the Appellant could have been in no doubt that the information requested was relevant; and he could, thereafter, have rectified the failure by then providing the information requested. Had he done so, then either the GMC may not have proceeded at all or at the very least this would have been material to the issues of impairment and/or sanction. In contrast, despite these further explanations provided in November 2006 and subsequently, the Appellant steadfastly declined to provide the information sought.

Other legitimate reason to refuse to give information

First, I do not accept that the Appellant's own concerns about a breach of his confidentiality rights provide a justification for his refusal to give the information about past employers. The Appellant did not at the time or later consistently raise this as his reason for not providing the information. Secondly, the reason he gave for his refusal in his letter of 28 September 2006 was that his "ex employers had not complained". However this was based on a mistaken view that the GMC can only conduct an investigation where there has been a complaint. There is no such limitation on the GMC's powers: see s.35CC (3) of the Act. Thirdly, the Appellant did not say to the GMC, at any time, that he had not received an explanation as to why he should give information about past employers. For these reasons, I do not accept Mr. Mylonas' submission that, in the overall context of the circumstances of the requests for information, it was legitimate or otherwise excusable for the Appellant to decline to give the information sought about past employers.

Mr. Mylonas submitted that the Panel erred in law in not applying a "2 stage process" to the issues of "misconduct" and "impairment". The decisions of this Court in Cohen (§§62 to 64), Zygmunt (§27) and most recently, Cheatle (§§19 and 63), impose a requirement upon an FTP panel to consider and decide separately these two issues. By contrast, in the present case, Mr. Mylonas contended that there was no such "2 stage process", that the Panel never actually determined that the Appellant's actions amounted to misconduct, and that the Panel applied exactly the same reasoning in respect of both "misconduct" and "impairment".

This is an argument of some substance. In the present case, the Panel did not expressly identify (a) findings on “misconduct” and (b) findings on impairment; and the delineation between the two is not easy to identify. Moreover, the Panel gave almost the same reasons for its finding of misconduct and its finding of impairment, namely breach of Good Medical Practice, not in the best interest of patients and undermining public confidence in the medical profession. In the case of impairment, the Panel, additionally, characterised the breach as a breach of "fundamental principles".

In my judgment, it would certainly have been better, particularly, in the light of this Court's observations in Zygmunt and Cohen, if the Panel in the present case, had clearly indicated distinct consideration of the two issues of “misconduct” and “impairment”.

However I accept Mr. Hare's submission that, as a matter of law, there is no requirement in all cases for there to be a formal "two stage" process. The requirement under the Act is that there are two "steps": the Panel must consider whether there has been misconduct and further whether that misconduct is such as to impair fitness to practise. As pointed out by Cranston J in Cheatle (at §§21 and 22, 63 above) whilst misconduct is about the past, impairment is an assessment addressed to the future, albeit made in the context of the past misconduct.

Furthermore, on a careful reading of the first two determinations, the Panel did deal, first, with misconduct and then, secondly, with impairment. It seems to me that the relevant “misconduct” is allegations 12 and 13 (see paragraph 54 above). These allegations were found to be proved, initially, in the Panel’s determination on the facts made on 17 October. Although these findings (of misconduct) were then re-iterated in the first part of the determination on impairment on 18 October (at paragraph 57 above), in substance “misconduct” had already been dealt with at the first “fact-finding” state of the procedure. The Panel’s findings on impairment are then to be found specifically in the passages at paragraphs 58 and 59 above.

Nor, as a matter of law, is there a requirement that, in all cases, the reasons for a finding of impairment must be distinct from the reasons for the finding of misconduct. Often a finding of impairment will follow from past misconduct, but that is not necessarily the case. As Mitting J put it in Zygmunt (§27) "even though the Panel ... finds ... misconduct, it may conclude that fitness to practise is not impaired". After saying that "in perhaps the great majority of cases," the issue will not be live" (i.e. in such cases, a finding of impairment will follow from the finding of misconduct), Mitting J continued, in contrast, by stating that "in cases in which [the issue] is" live, then impairment "must be separately and appropriately" addressed. It is thus necessary to distinguish between cases where misconduct is, of itself, likely to lead to a finding of impairment and cases where misconduct does not necessarily lead to finding of impairment, because of other factors to be taken into account. Such factors usually comprise events between the date of misconduct and the date of the Panel hearing, such as a one-off event of misconduct followed by the passage of substantial time, and otherwise unblemished record, or subsequent retraining. In each of Zygmunt, Cohen and Cheatle, the panel had failed to take into account what had happened in the period between a one-off incident of past clinical misconduct and the date of the assessment of fitness at the panel hearing.

However in the present case, the relevant misconduct - the failure to provide information - first occurred less than a year before, and remained an ongoing failure at, the date of the Panel's hearing. It could not be said that the misconduct found was a one-off incident in the past and that there had been a relevant passage of time in which to consider whether it had been remedied or any impairment had been healed. The failure to provide information was never remedied. It follows that where, as here, there are no relevant other factors occurring following the misconduct, then the reasons for a finding of impairment do not have to be separate from the reasons for the finding of misconduct. I am not satisfied that there needed to be two distinct sets of reasons. Here, in its determination the Panel did consider both issues and found, broadly, that one and the same facts gave rise to the misconduct and the impairment. In my judgment, in this case, this approach was not erroneous as a matter of law.

In a related submission, Mr. Mylonas further argued that the Panel failed properly to consider the issue of impairment. He submitted that the Panel failed to consider the Appellant's current performance, failed to "look forward" and failed to take account of the Appellant's statements that he had retired and did not wish to work again and, in general, failed to take account of the overall context in which the correspondence between the Appellant and Dr. Baxter and the GMC had taken place. The Appellant further contended that his case did not fall under any of the specific heads of "impairment" identified at paragraph 58 of the ISG.

In its reasons for the finding of impairment, the Panel, after referring to ISG page S1-2, paragraph 11, also relied upon the GMC's definition of the "public interest" at paragraph 13, at page S1-13, and, in particular, in its concluding reasons, upon two elements of that definition, namely protection of patients and maintenance of public confidence in the profession. The third reason given by the Panel was that the Appellant "had breached fundamental principles of Good Medical Practice".

In considering this issue, first, I bear well in mind that, unlike an issue of primary fact, impairment is not only an elusive concept, but is essentially a matter of an "overall value-judgment", and in this context, a matter of professional judgment. Thus, this Court is required to accord due respect to the Panel's status as the relevant professional disciplinary tribunal: see Cheatle supra, at §15, citing Auld LJ in Meadow.

Secondly, whilst I note that the GMC's own formulation of the concept of "impairment" in paragraph 11 of the ISG does not assist either the GMC or this Court to reach a decision in any particular case (Zygmunt §28 and Cheatle §18), guidance as to the concept of "impairment" can be found, in Dame Janet Smith's fifth Shipman Report (para 25.50) where she cites four possible bases of "impairment". One of the four reasons cited by Dame Janet Smith is where the practitioner has "breached one of the fundamental tenets of the profession".

Thirdly, as to the Panel's specific findings on impairment, it relied upon breach of "fundamental principles of Good Medical Practice". Whilst this is not, precisely, the same expression as used by Dame Janet Smith, in my judgment, the Panel appears to have been considering the same or a similar concept. The Panel found that the failure to comply with paragraph 30 of Good Medical Practice gave rise to impairment in this case, on the basis that the obligation to co-operate with an investigation comprised within that paragraph is a "fundamental principle" of Good Medical Practice. A further connection between compliance with Good Medical Practice and the concept of fitness to practise is provided by ISG page S3-13 paragraph 55 (paragraph 17 above). In my judgment, therefore, this finding can fairly be said to fall within the category of "fundamental tenets" identified by Dame Janet Smith.

As to whether paragraph 30 of Good Medical Practice does amount to a fundamental "principle" or "tenet", such that failure to comply with it can amount to impairment, that is a question of judgment on the facts of the particular case. Whilst it may seem harsh to characterise a merely failure to respond to an information request from the GMC as conduct which calls into question a practitioner's very fitness to practise, on the other hand the GMC's regulatory role is central to the "public interest" considerations of patient protection and public confidence. Paragraph 30 of Good Medical Practice enables the GMC to carry out that role effectively, and a practitioner's failure to comply with it is likely to obstruct the GMC in carrying out that task. In the present case, with knowledge of the Appellant's history of hepatitis B infection, the GMC was seeking, properly, to investigate his past conduct, and in particular the question whether, in the past, he had acted in breach of paragraphs 59 and 60 of Good Medical Practice. The Appellant's breach of paragraph 30 had the effect of preventing or obstructing the GMC's investigation of that possible substantive breach of Good Medical Practice. Breach of paragraphs 59 and 60 would itself be a very serious matter, and depending upon the particular circumstances of the breach, and subsequent conduct, a breach which might be considered such as to give rise to impairment. But, here there was the additional element of obstructing the GMC's own investigatory process and on a continuing basis. This was not a case of a gap in time during which the practitioner had rectified his ways. Furthermore the Panel was obviously concerned by the Appellant's complete resistance to assisting the investigation, pointing out in the determination that "even if you did not have complete records you should have attempted to provide an indication of your employment history to demonstrate your co-operation and concern for any potential risk to patients". The Appellant however was not willing to assist.

Fourthly, as regards the other two reasons given by the Panel (interests of patients and public confidence), these public interest factors are also relevant to impairment issues (see Cohen, supra, §62). A proven substantive breach of paragraphs 59 and 60 would raise these public interest concerns, and a breach of paragraph 30 hindering an investigation is equally capable of raising such concerns.

Fifthly, as regards the argument that the Panel failed to take account of the context of the correspondence and, in particular, the fact that the Appellant had consistently stated that he had retired, in my judgment, the Panel was entitled to regard its concerns arising out of the Appellant's persistent failure to respond, even partially, to the request as to past employers as impairing fitness to practise. Moreover, whether or not a practitioner states that he has no intention of practising in the future, is not directly relevant to whether or not his fitness to practise in the future is impaired (in the event, for example, that he should change his mind). That the possibility of the Appellant practising in the future could not be ruled out was reinforced by the Appellant declining, (as he was entitled to do) to apply for voluntary erasure.

In my judgment, the Panel's conclusion on impairment should be upheld. The Panel did consider the issue of impairment. Its reasons were certainly not extensive, but they were adequate. On this matter, I should give due respect to the Panel's own professional judgment. Moreover, having heard argument myself on the issue, I consider that, on analysis, there are good grounds for a finding of impairment in this case. Accordingly there is no basis upon which the finding of impairment should be set aside.

Mr. Mylonas contended that the sanction of erasure was, in this case, excessive. The misconduct was isolated; it happened at the end of a career, which was otherwise unblemished; and it was a sanction which gave rise to opprobrium and reputational damage. The Appellant, he argued, had effectively said to the GMC that he would give the information, if the GMC could show that it was entitled to it. The Appellant had been upset about the breach of confidentiality and the Panel failed properly to take account of the Appellant's apology. The Panel's finding of absence of insight was misplaced. The GMC has put the Appellant under improper pressure to apply for voluntary erasure. In all these circumstances, a sanction of either a short period of suspension or the imposition of conditions so as to prevent future conduct of EPPs would have been appropriate and sufficient.

I start my consideration of this issue by reminding myself of the guiding approach of this Court to an appeal against sanction as set out by Laws LJ in Raschid v. GMC [2007] 1 WLR 1460 at §§16-20. There, Laws LJ identified two strands to the approach. First, in considering the question of sanction, the FTP panel is centrally concerned with the reputation and standing of the profession rather than with punishment of the doctor and thus factors of personal mitigation carry less weight in this jurisdiction. Secondly, particular regard is to be had to the special expertise of the FTP panel to make the judgment as to sanction, as being the body best qualified to judge what measures are required to maintain the standards and reputation of the profession. With this approach in mind, I address the specific points raised by Mr. Mylonas.

First, as to the claim that the misconduct here was an isolated incident, I accept that the Appellant does appear to have a long and otherwise unblemished history of medical practice. This is the only misconduct of which he has been accused. However, as Mr. Hare pointed out, the misconduct here was not a momentary lapse of judgment, which was corrected or not subsequently repeated. The failure to provide information was ongoing for a period of over a year, in circumstances where the GMC's request had been repeated on several occasions and where the Appellant had many opportunities to remedy the failure.

Secondly, there is the contention that in the overall context of the exchanges between the Appellant and the GMC, the sanction was excessive. Whilst it is the case that the Appellant did respond promptly to the GMC's requests as well as to the prior requests from Drs. Phillips and Baxter, I do not accept the argument that those responses could be said to be co-operative or even conditionally co-operative. At no point did the Appellant indicate that he would give the information sought, if the GMC could explain why it was being sought. Whilst the GMC could have explained more clearly what was being sought and more particularly why, the Appellant plainly understood that he was being asked for information about past employers. More significantly, the explanations which the Appellant did give failed to mention the question of whether he had been carrying out EPPs in 2000 and 2001 when his viral load was in excess of the relevant limit. Far from being co-operative, the Appellant's attitude to the requests was obstructive.

Thirdly, as to the Panel's finding of lack of insight, the ISG (at S1-15) expressly states that where there is "persistent lack of insight", erasure is likely to be the appropriate sanction. On this issue, it is the case that in the course of his submissions on sanction, the Appellant did apologise in the following terms:

"I apologise to have caused so much concern to the GMC because of lack of time, lack of understanding and seriousness, so I apologise wholeheartedly. It is not my intention to ignore somebody or overlook something. It is a matter of misunderstanding with the seriousness and the guidelines. So from that point of view I apologise. I should have been careful or serious. I should have taken legal advice. I did not have time"

Moreover, in considering this question of apology and insight, the Panel was required to take account of the impact of cultural differences on the way in which such insight is expressed: see ISG page S2-4 paragraphs 19 and 20. Paragraph 20 states:

"Cross cultural communications studies shows that there are great variations in the way that individuals from different cultures and language groups use language to code and de-code messages. This is particularly the case when using a second language ... Awareness of and sensitivity to these issues are important in determining the following

a.

How a doctor frames his or her insight

b.

How a doctor offers an apology

c.

The doctor's demeanour and attitude during the hearing"

Whilst I have no detailed knowledge of the Appellant's proficiency in English, not having heard him in the course of this appeal, it appears, both from the content of his letters and from the transcript of the hearing before the Panel, that the Appellant does not always express himself in English with consistent clarity.

Nevertheless, even taking this into account, I am not satisfied that the Panel's conclusion on lack of insight was wrong or that it failed properly to consider the Appellant's apology. As the ISG expressly points out, it was the Panel who had had the opportunity to consider the Appellant's demeanour and attitude, having observed and heard him throughout the four day hearing; and the Panel relied upon having done so. It was in a position to reach a conclusion on the extent to which the Appellant understood the seriousness of the matter. During the course of the Panel hearing, the Appellant continued to dispute matters, including the validity of the viral load tests and gave differing and new explanations for why he had not provided the requested information. At one point, he seemed to be suggesting that he was free from hepatitis B altogether. Further, at no point before the Panel was the Appellant willing to accept any fault on his part. The apology itself does not clearly indicate that he realised that he should have provided the information sought. In my judgment, and even taking account of cultural differences, the Panel, with the benefit of having heard the Appellant over a four day period, was entitled to conclude that the apology was not indicative of the Appellant having stood back, and accepted with hindsight that he should have behaved differently (as suggested in the ISG).

Fourthly, as regards suspension, the Panel considered, but rejected this as an alternative sanction on the basis that it would not have reflected the seriousness of the misconduct and would not adequately protect the public or the public interest.  As Mr. Hare pointed out, of the factors listed in the ISG (page S1-14) as supporting a sanction of suspension only (rather than erasure), the Appellant did not appear to meet the requirements of any of them. Furthermore, since suspension can only be temporary and the Appellant claimed he was not practising, such a sanction alone would have had little if no effect upon the Appellant. Mr. Mylonas himself recognised that suspension alone was not appropriate, since he accepted that suspension would have to be supplemented by the imposition of conditions.

Fifthly, and finally, there is the alternative sanction of the imposition of conditions upon registration. The Panel considered conditions, but concluded that this was not the appropriate sanction because, first, the repeated misconduct was a "serious departure" from Good Medical Practice and, secondly, it did not consider that there were "appropriate and practical conditions that could be applied in this case".

As to the second reason, the ability to formulate appropriate conditions is an express requirement set out in ISG page S1-13. Mr. Mylonas put forward a detailed list of conditions as being suitable in the present case, drawn from the GMC's own "Fitness to Practise Panel Conditions Bank". These conditions would be designed to prevent the Appellant from carrying out EPPs in the future and from practising without undergoing continuous supervision and testing. This, he submitted, would be a sufficient sanction. In practice, the risk of the Appellant improperly carrying out EPPs in the future would be no greater if his registration was subject to conditions than if the Appellant was erased. On this point alone, there was some force in Mr. Mylonas' submission that conditions could be formulated which would, on their face, guard against the future risks arising from the Appellant's hepatitis B status. Mr. Hare's contention that, if only conditions were imposed, that would not provide the same degree of protection against EPPs being carried out as would erasure seemed to me to be speculative.

However another factor to be taken into account in considering conditions is whether the doctor has insight and the willingness of the doctor to abide by the conditions. Mr. Hare submitted that there had to be real doubt as to whether the Appellant would comply with any conditions imposed upon him. Even a purely negative condition would still require co-operation from the doctor. Whilst lack of insight was not expressly relied upon by the Panel as a reason for not imposing conditions, nevertheless, given the Panel's findings on insight, I accept that there would be real doubt as to whether the Appellant would abide by conditions.

Finally, as to the first reason given by the Panel for rejecting conditions (i.e. serious departure from Good Medical Practice), the ISG (at S1-15) expressly identifies this as another factor which makes erasure likely to be the appropriate sanction. In my judgment, the Panel was entitled and indeed correct in rejecting the option of conditions on this basis, provided that the departure was indeed "serious". As to that question, as I have indicated above, the breach of paragraph 30 here hindered an investigation as to whether there had been a past breach of paragraphs 59 and 60. If the Appellant had given the information sought about previous employers, he may well have faced a charge of breach of paragraphs 59 and 60 in relation to his conduct in 2000 and 2001, which in turn may have been sufficiently serious to warrant erasure. However that did not happen, because or largely because of the Appellant's own breach of paragraph 30. It is that context which marks the seriousness of the breach of paragraph 30 in this case. The Appellant's conduct effectively stymied the investigation by the GMC into a potentially very serious matter.

This case has a number of unusual features. The finding of impairment is based upon misconduct of a procedural nature. At times during the investigation, the GMC demonstrated a marked lack of clarity. As far as those representing the GMC were aware, this is the only case in which a practitioner has been subject to erasure for impairment arising wholly from a failure to provide information to the GMC. I have given careful consideration as to whether these features are such that the Panel ought more properly to have imposed, or ought at least to reconsider, the sanction of conditional registration. However, in my judgment, and taking full account of the two strands to this Court's approach to appeals on sanction, I am satisfied that the Panel's decision of erasure was proper and should be upheld.

For the above reasons, the Panel was justified in finding that the Appellant's failure to provide information as to his past employers was in breach of paragraph 30 of Good Medical Practice, and that this constituted misconduct, by reason of which his fitness to practise was impaired. Furthermore the Panel was justified in imposing the sanction of erasure. Accordingly this appeal is dismissed.

I will hear submissions on consequential matters, including costs, immediately following the handing down of this judgment, unless any party requests that they be dealt with subsequently and in which event, I will give further directions as to the procedure to be followed, including for the service of written submissions.

I am grateful to Mr. Mylonas and Mr. Hare for their assistance to the Court in the presentation of oral and written argument in this matter.