(Sitting in Manchester)
Manchester Civil Justice Centre
1 Bridge Street West
Manchester M60 9DJ
Before:
MR JUSTICE KERR
B E T W E E N :
DR RUTH RHONA BRONWYN HILL Appellant
- and -
GENERAL MEDICAL COUNCIL Respondent
MR ANDREW HOCKTON (instructed by Eastwoods Solicitors Limited) appeared on behalf of the Appellant.
MR NIGEL GRUNDY (instructed by the General Medical Council) appeared on behalf of the Respondent.
JUDGMENT
MR JUSTICE KERR:
Introduction
This appeal to the Administrative Court in Manchester is against the decision of a disciplinary tribunal which concluded its task on 29 September 2017 suspending the appellant doctor (Dr Hill) for 12 months after a contested hearing that lasted no less than 62 days. At the hearing, Dr Hill faced an allegation of dishonesty arising from an online job application and allegations of poor performance arising from a performance assessment.
A separate order for immediate suspension was made the same day. That suspension was lifted by Lane J on 29 March 2018 on the basis that Dr Hill undertook that, pending the appeal to this court, she would practise subject to conditions. The appeal was heard before me at the Manchester Civil Justice Centre on 15 to 17 May 2018. I am grateful to counsel, Mr Andrew Hockton for the Dr Hill and Mr Nigel Grundy for the respondent (the GMC), for their helpful submissions.
Law
The appeal is brought under section 40 of the Medical Act 1983. The court has to apply the provisions in CPR Part 52. The applicable principles have been stated and restated many times. The most recent authoritative pronouncement of some of the applicable principles was that of Sharp LJ in the judgment of the Court of Appeal in GMC v Jagjivan [2017] 1 WLR 4438 at [40].
The following propositions are of particular relevance here:
Dishonesty of any kind is very serious and may well lead to erasure from the register because it threatens public confidence in the profession;
lack of insight, both in cases of dishonesty and poor performance, makes the matter more serious;
this appeal can only be allowed if I am satisfied that the decision below is wrong:
the tribunal’s judgment on the credibility of witness who gave oral evidence is virtually unassailable;
appropriate deference is due to the tribunal below in view of its special expertise, especially in cases regarding professional practice;
the court can correct material errors, but its judgment on application of principles to the facts is a secondary one; and
as regards sanction, the court should not conduct a resentencing exercise, substituting its view for the tribunal’s.
Mr Hockton concentrated on older authorities, including the duo of Privy Council cases, Ghosh v GMC [2001] 1WLR 1915 and Preiss v General Dental Council [2001] 1 WLR 1926, decided within a month of each other and within a year of the Human Rights Act 1998 entering into force; and influenced by the advent of that new statute.
Mr Hockton emphasised that the jurisdiction of this court is appellate, not a review jurisdiction. The process is a rehearing, albeit without oral evidence, not a review hearing.
He also drew my attention in time honoured fashion to Auld LJ’s judgment in Meadow v GMC [2007] QB 462, at [118], [125] and [197]ff, that of Laws LJ in Raschid and Fatnani v GMC [2007] ICR 811 and those of Cranston J in Cheatle v GMC [2009] EWHC 645 (Admin) and Yassin v GMC [2015] EWHC 2955 (Admin).
In written argument, Mr Grundy, for the GMC, referred to several other cases which I need not go through. The propositions of law deployed by the parties were those set out above; they were not controversial and are well trodden ground.
Facts
Dr Hill is a general paediatrician of considerable experience. She graduated from Trinity College, Dublin in 1985, qualified as a doctor in Ireland and has practised at many hospitals there and in this country. She is also qualified in the USA and has undertaken considerable academic work, at Great Ormond Street Hospital in London and elsewhere.
In October 2002, Dr Hill was referred to the London Deanery as a result of concerns about her performance, including (according to the present tribunal’s decision on sanctions, paragraph 27) “poor communication and interpersonal skills with colleagues.”
From February 2009 to August 2010, she worked at a hospital in Barnsley. Concerns were raised in 2010 about her performance while working there. Interim conditions on her registration were put in place as a result. These started on 25 November 2010. She was invited by the GMC to undergo a performance assessment. That took place in March 2011.
The resulting report indicated that her fitness to practise could be impaired. She disagreed and refused to accept suggested undertakings. The matter then went to what was then called a Fitness to Practise Panel. That disciplinary process lasted from August 2012 until June 2013.
During the process, in March 2013, Dr Hill underwent an evaluation on her application to become a specialist registrar. I mention that exercise because Mr Hockton drew it to my attention. There was much that was positive by way of comment on Dr Hill’s capabilities and performance.
At about the same time, Dr Hill also underwent something called a START assessment for the purposes of evaluating her skills, to determine her capacity to operate at consultant level. Again, much that was positive emerged about Dr Hill as a result of that exercise.
At the conclusion of the Fitness to Practise Panel proceedings in June 2013, the panel’s decision was that Dr Hill’s fitness to practise was not impaired. The interim conditions on her registration were removed from 4 June 2013, having been in place for a little over two and a half years.
On 4 December 2013, Dr Hill received the result of her application for a certificate of completion of training, for the purpose of progressing further in her career. The result was negative. In reaching that result, the assessors took account (as was stated in the letter communicating the outcome) of all the information and evidence available, including structured reports from nominated referees.
After that, in March 2014, Dr Hill took up employment at University College London Hospital, where she worked for a year until March 2015. On 2 March 2015, she began work at Derriford Hospital in Plymouth. Later that month, on 25 March, at the request of the NHS Trust that operates that hospital, while already working there, Dr Hill filled in an online job application form. In that form, the following question was asked:
“Have you ever been removed from the register or have conditions or undertakings been made on your registration by a fitness to practise committee or the licensing or regulatory body in the UK or in any other country?”
To that question Dr Hill answered electronically “No”.
The next day, on 26 March 2015, University College London Hospital referred Dr Hill to the GMC in the light of concerns it expressed about her ability to work safely and communicate with colleagues effectively.
The specific concerns were expressed thus and set out in a later assessment report:
“(1) Inability to work safely and effectively at an SpR level.
(2) Inability to manage the workload expected of a neonatal SpR and to prioritise appropriately the workload.
(3) Poor communication skills with colleagues; fails to ask for help when required.
(4) Concerns regarding decision making and clinical practice safety.
(5) Concerns regarding her ability to recognise effectively sick neonates from the clinical information and examination findings.
(6) Concerns over her ability to conduct effective hand overs.”
The relevant NHS Trust went on to state that they had tried to resolve those concerns informally, without any resulting demonstrable improvement in Dr Hill’s performance.
On 6 May 2015, there was an Interim Orders Tribunal hearing as a result of the referral by University College London Hospital. At that hearing, conditions on Dr Hill’s registration were imposed for 15 months to enable the matter to be investigated, at the usual regrettably slow pace.
On 11 May 2015, Dr Hill’s employment at Derriford Hospital terminated. I was told that the reason for that was that the conditions imposed by the Interim Orders Tribunal could not be fulfilled there.
On 3 June 2015, Dr Hill was invited by the GMC to undergo a further performance assessment. On 9 June 2015, the Plymouth Hospitals NHS Foundation Trust which operates Derriford Hospital raised three further concerns expressed thus in a later assessor’s report:
“• Communication and interaction with staff,
• Adherence to local clinical practice guidelines
• Support of junior medical staff.”
The Trust went on to note that Dr Hill was recognised to be an experienced, hardworking middle grade doctor with a knowledge base considered to be commensurate with her role.
Also on 9 June 2015, the same Trust referred Dr Hill to the GMC in the matter of a concern about the accuracy of the answer she had given in her online application form. The Trust formed the view that the answer was wrong. However, it is agreed in this appeal that the relevant staff were unaware that the restrictions Dr Hill had not disclosed by answering “no” to the question were no longer current and had been removed by the time she completed the application form.
On 1 July 2015, Dr Hill accepted the invitation to undergo a further performance assessment. That assessment took place from 9 to 12 November 2015. On those dates, the “peer review” part of the assessment was undertaken in London. The assessment process consists of:
About 50 case studies where the doctor’s notes are looked at and commented on;
some case based discussions or “CBDs” selected from those studies for discussions with the doctor based on pre-notified written questions;
“observed structured clinical examinations” (OSCEs) where the part of ill patients is played by actors;
“third party interviews” or TPIs, which are what the name suggests, interviews with others who have worked with the doctor; and
a knowledge test, in which Dr Hill did brilliantly, scoring 90 per cent.”
On 26 November 2015, the part of the performance assessment process comprising “tests of competence” was undertaken in Manchester.
On 22 December 2015, the assessor’s written report to the General Medical Council was produced. It is a lengthy and detailed document, a copy of which, together with its six appendices, is before me. The assessor were Dr David Scott, Dr Susanna Gabbie and Mrs Judith Way, the latter being the non-medical lay member of the assessment panel.
The conclusion was that Dr Hill’s performance in the “domain” of knowledge, skills and performance was, is certain respects, “unacceptable”, in another respect, such as to give “cause for concern” and that, in the domain of “communication, partnership and teamwork” and “maintaining trust”, it was “unacceptable”. The written report gave detailed comment and explanation in support of those conclusions.
After that, Dr Hill was sent a “rule 7” letter on 10 February 2016. The matter then moved in the direction of a disciplinary hearing, preparations for which occupied much of 2016.
It has been a feature of Dr Hill’s career that she had strong supporters at the same time as having her detractors. In March 2016, she started working (subject to the Interim Orders Tribunal conditions which were varied more than once) at Newham University Hospital. There, she met a Dr Alam in a professional capacity. In a later testimonial, he wrote in mainly positive terms about her work and performance.
On 1 April 2016, the GMC case examiners referred Dr Hill to a tribunal of the Medical Practice Tribunal Service (MPTS) to consider charges alleging both dishonesty and poor performance. The charges were as follows.
First, it was alleged that on 25 March 2015, she had falsely answered “no” to the question that I have already quoted in the online application form; secondly, that she knew when answering that question that interim conditions had been imposed on her registration from 25 November 2012 until 4 June 2013; and thirdly, that her answer was misleading and dishonest.
The second part of the charge sheet asserted that Dr Hill’s performance (as measured in the performance assessment) was “unacceptable” in the areas of assessment, clinical management, record keeping, relationships with patients and working with colleagues; and “a cause for concern” in the area of operative and technical skills.
It was alleged that all those matters had the consequence that her fitness to practise was impaired by misconduct and deficient professional performance. The charge in relation to relationships with patients was later amended, so that, instead of being considered “unacceptable”, it was considered “a cause for concern”, which is a lesser form of criticism.
On 31 May 2016, the NHS published material concerning job applications, including a document on the website entitled “Changes to NHS jobs regarding ‘fitness to practise’”. The purpose of that was said to be as set out in the summary at the start:
“To improve the information captured on application forms which require details relating to ‘Fitness to practise’ we are making some changes to NHS jobs.”
The changes were to become effective from 14 June 2016. In relation to the question I have already quoted to which Dr Hill answered “no”, the document said this. The document indicated that, in the event of the respondent selected the “Yes” option from the dropdown menu, the following would appear:
“If ‘YES’, please provide details of any conditions or undertaking which have been applied to your professional registration and the name and address of the regulatory or licensing body concerned.
You are not required to provide details where any right to appeal has been upheld AND where that appeal has resulted in your case being fully exonerated.”
With the disciplinary hearing looming, another doctor at Newham University Hospital, Dr Mathew, wrote a letter in positive terms supporting Dr Hill and emphasising that there were no concerns about her work at Newham University Hospital at the time. In July 2016, the interim conditions were about to expire and, on 20 July, were extended by this court by consent. Dr Mathew followed up with a further letter of support in similar terms on 7 October 2016 in the run-up to the start of the disciplinary hearing.
On 2 December 2016, ten days before the hearing was due to start, Dr David Milligan, a Newcastle based expert specialist consultant neonatologist instructed by Dr Hill, produced a written report complete with a CPR Part 35 compliance declaration. It was detailed and erudite, running to about 70 pages, including the appendices, which quoted extensively from Dr Hill’s medical notes which had been the subject of her performance assessment.
On 5 December 2016, with the tribunal hearing due to start a week later, Dr Hill signed her written witness statement to be used as her evidence in her defence before the tribunal. It was nothing if not thorough, running to 299 pages and seeking to refute seriatim and in detail the factual and medical basis of each of the instances in which criticisms had been levelled at her.
On 12 December 2016, the tribunal hearing opened. Among the documents produced by Dr Hill was one apparently addressed to NHS employers entitled “Employing a doctor with restrictions on their practice”. The document began as follows:
“A doctor with restrictions on their practice is required to disclose their publicly-available restrictions to you and their responsible officer. You can also check on the online List of Registered Medical Practitioners if the doctor you are employing has fitness to practise restrictions.”
Later, on the next page, the document explained that, among matters not listed on the List of Registered Medical Practitioners were:
“Conditions or undertakings that are solely concerned with the doctor’s health, these are confidential … Suspensions or Conditions imposed by an Interim Orders Tribunal where the case is subsequently closed with no impairment or no warning.”
I pause to comment briefly on that document. First, it is one addressed to employers. Second, it refers to “publicly available” restrictions; third, it refers to the “List”. Fourth, it says the List does not contain past interim conditions where subsequent exoneration has occurred; and fifth, it does not state clearly that, in cases of subsequent exoneration, past interim conditions either are, or are not, to be regarded as publicly available.
Certainly, they were at one time. Does their disappearance from the “List” and the website mean that they are no longer publicly available? Views on this could reasonably differ. Old cached web pages often remain available for years and providers of search engines sometimes have to be reminded by courts here or in mainland Europe of a subject’s right to be forgotten, and the like.
Although it is not entirely clear, it appears that a person who answers “yes” to the question that I have quoted is then given an option in a drop down menu with additional text; the parties commented to the tribunal on this aspect of the case, in their submissions to it.
Moving to the course of the tribunal hearing, I have been taken to parts of the transcript of the oral evidence of witnesses who gave oral evidence at the tribunal. The following were, for my purposes in this appeal, the main features of the tribunal process; first, on day nine (22 December 2016) the oral evidence of Mr Scott and, on day 15 (9 January 2017) and the following four days, days 16 to 19, the evidence of Dr Gabbie.
On 19 January 2017, an exercise was conducted in which the tribunal went through with various criticisms of Dr Hill’s performance which had been withdrawn, or which were said by Dr Hill to have been withdrawn, in the course of the assessors giving their evidence. As I understand it, the tribunal and the parties went through the list of candidates for withdrawn criticisms, and the tribunal determined in a number of cases where agreement was not reached whether those criticisms either had been withdrawn or were not supportable on the evidence. The tribunal later compiled a list of those matters.
That list featured in the first determination made by the tribunal, which was on 13 April 2017, when it gave its determination on a submission of no case to answer made by Mr Hockton on behalf of Dr Hill. The tribunal’s determination of that issue was quite lengthy, occupying some 18 pages. It included an assessment of the credibility of the assessor witnesses who had given evidence. Dr Hill had not at that stage yet done so.
It included a list of withdrawn, partially withdrawn or maintained criticisms taken from the assessment report. The tribunal then recorded Mr Hockton’s various submissions in support of his submission of no case to answer, but rejected them, reasoning that sufficient evidence to support the charges remained, even after the withdrawals, on the basis of which the tribunal could find the charges well founded.
The hearing, therefore, continued. I was shown transcripts of the oral evidence of Dr Hill on 13 and 14 June 2017 (days 35 and 36), including her answers to questions about the circumstances in which she had answered “no” to the question on the online application form and in response to the criticisms of her performance. I was shown some of the evidence of Dr Milligan, who gave oral evidence on day 40 (26 June 2017).
In the course of the hearing in the middle of August, this court once again extended the interim conditions, this time for a shorter period of three months, no doubt anticipating that that would suffice to see the hearing through to its conclusion.
On 1 September 2017, the tribunal gave its determination on the facts. The tribunal, in doing so, referred back to its previous determination rejecting the submission of no case to answer. It then included an assessment of the credibility of Dr Hill’s evidence. That was adverse to her. The tribunal concluded, in paragraphs 11 to 19 of the determination on the facts, that her evidence had been misleading in places, and that her replies were often rude and sometimes appeared arrogant. The tribunal preferred the evidence of the assessors to that of Dr Hill where they differed.
The tribunal’s assessment of Dr Milligan as a witness was, by and large, positive, though they commented that he went beyond his brief on occasions. The tribunal then considered the dishonesty allegation and found it proved, reasoning essentially that the question asked was clear and could not sensibly be understood to exclude a requirement to disclose lapsed interim conditions.
The tribunal referred to a “clear discrepancy” in the explanation given by Dr Hill in her witness statement and in oral evidence. That arose from a passage in her witness statement in which she had said that she treated the question as being “in the present tense”. The tribunal reasoned that she knew when she answered “no” to the question that she had had interim conditions on her registration, and it decided that her answer was dishonest.
The tribunal then went on to consider the performance based allegations and went through them. In the majority but not all cases, the findings were adverse to Dr Hill. The allegations of deficient performance were found proved on the strength of the findings adverse to Dr Hill, which, as I have said, formed the large majority of the tribunal’s findings.
Such then was the tribunal’s decision on the facts. The hearing then moved to the next stage, which was consideration of impairment. On 9 September 2017 and 11 September 2017, Dr Hill, assisted by her solicitors, attained and deployed further testimonials from doctors at the Newham University Hospital where she was then working. They came from Dr Alam, whom I have already mentioned, Dr Liebeschuetz, Dr Ravi and Dr Moodambail.
Three of those doctors were asked by the tribunal to give live evidence, and did so by video link on 12 September 2017. Most of their comments were highly favourable to Dr Hill’s work and performance. They emphasised that there were no concerns about her integrity. For example, Dr Alam referred to her as a “good team player”. The only caveat was that there had been two incidents in which Dr Hill’s management of communications with colleagues had given some cause for concern.
Following an unsuccessful attempt by Dr Hill, through Mr Hockton, to reopen the facts relevant to the dishonesty allegation, the tribunal made its determination on the issue of impairment on 25 September 2017. Its decision was that Dr Hill’s fitness to practise was impaired.
The tribunal referred to the documentary evidence, including the positive testimonials from the doctors at Newham University Hospital, summarised the submissions of Mr Grundy and Mr Hockton, and referred to the principles in the 2013 edition of Good Medical Practice.
The tribunal decided that the answer “no” to the question on the online application form constituted misconduct (see paragraph 20 of the impairment determination); though “not at the highest end of the spectrum of dishonest conduct, nonetheless … [it] amounted to serious misconduct.” In relation to deficient professional performance, the tribunal said, at paragraph 27ff, that it took account of the question of insight and likelihood of repetition. The tribunal pointed out that Dr Hill did not accept the findings in relation to dishonest conduct and, in the tribunal’s judgment, had sought to mislead when giving evidence.
The tribunal concluded, at paragraph 33, that Dr Hill’s “lack of insight leads the tribunal to conclude that you may act dishonestly in the future were it to be in your best interests so to do.” At paragraph 34, the tribunal said it “considered that the deficiencies in your professional performance are capable of being remedied”, but went on to say that she had made little, if any, attempt to address the criticisms and that she had “no insight into your deficient professional performance.”
The tribunal reasoned that, in the 2013 Fitness to Practise panel proceedings, the panel had taken the view that repetition of the matters of concern was unlikely. Yet, within two years, similar concerns had been expressed by staff at two different hospitals. The tribunal reasoned that, on the basis of those findings, Dr Hill’s fitness to practise was indeed impaired by reason of both misconduct and deficient professional performance.
After that, on 26 September 2017 (day 59), Mr Hockton made submissions in relation to sanction, urging that suspension was not necessary and that any conditions should be narrowly drawn. The legal assessor to the panel gave advice, and the tribunal proceeded to its determination on the issue of sanctions. Its decision was to impose a 12 month suspension from practice. After reciting the submissions and going through what it perceived to be the aggravating and mitigating features, the tribunal, in the usual way, considered the options set out in the sanctions guidance document in ascending order of gravity and concluded that nothing less than a 12 month suspension would suffice to meet the case.
The tribunal also made an order for immediate suspension pending any appeal. Unfortunately, the rules do not provide for a doctor to continue practising subject to continuing interim conditions pending appeal, although that would obviously be sensible. The conditions inexplicably fall away unless an order for immediate suspension in imposed, as it therefore often is.
The rules also have the unfortunate consequence that time on suspension between the determination of sanction and the outcome of any appeal does not count towards the overall period of suspension. This means that the maximum of 12 months is often little more than fiction. An attempt is then made to counterbalance the unfairness of that rule which sets a price on appealing. The doctor can apply to this court to lift the temporary suspension until the appeal is heard. That would be well and good if it did not take several months for such an application to be determined.
Dr Hill appealed to this court on wide ranging grounds, now supported by submissions to which I will return shortly. Her counsel below and now, Mr Hockton, persuaded Lane J on 28 March 2018 that the tribunal had been wrong to impose immediate suspension. Lane J’s task was made easier by the giving of undertakings by Dr Hill to observe conditions similar to those that had been in place until the tribunal’s determination.
Such, then, are the epic facts in this appeal.
Submissions on behalf or Dr Hill
Mr Hockton mounted a wide ranging attack on every aspect of the tribunal’s decisions. To contain this judgment within a reasonable compass, I must paraphrase his submissions as briefly as I can. First, in relation to the dishonesty charge, Mr Hockton emphasised the following:
the only conditions to which Dr Hill had even been subject were past interim conditions; her fitness to practise had never been found impaired. There were no current interim conditions at the time she completed the online form.
Dr Hill had never failed to disclose current interim conditions to which she had been subject for over two and a half years, ending in June 2013.
There was no duty to disclose lapsed interim conditions where there had been a subsequent exoneration.
Nor should there be such a duty, since they do not tell the employer anything about the doctor’s fitness to practise. They are not based on findings of fact or any evaluation of the merits of a case against a doctor.
Lapsed interim conditions are not “publicly available” within the meaning of the GMC’s policy document of May 2016.
The NHS publication effective from June 2016 referred to “ambiguity” and stated that, where an appeal to the High Court had led to exoneration, no “details” need be provided.
It was “repugnant to common sense” to say that lapsed interim conditions should be “disclosable” but quashed substantive conditions should not be.
The tribunal should have accepted Dr Hill’s evidence that she had answered the question honestly. The tribunal was wrong to rely on a “discrepancy” in Dr Hill’s account and to its own adverse credibility finding on unrelated matters, such as an issue of attendance on courses about record keeping.
Second, on the issue of performance, Mr Hockton submitted that the tribunal was wrong to find that Dr Hill’s performance was deficient, for the following main reasons:
the previous finding in 2013 that her fitness to practise was not impaired should have counted in her favour, but the tribunal ignored it. It gave her good reason to be defensive during the proceedings.
Specifically, the tribunal should have taken into account in her favour the assessment materials from 2013, which contained much material favourable to her that underpinned the finding in her favour in the 2013 proceedings.
In the 2015 performance assessment, the tribunal overlooked the point that Dr Hill was assessed as an experienced specialist registrar working at a level 3 neonatal unit when, in fact, she was only there to gain the necessary six months’ experience to enable her to apply for a Certificate of Eligibility as a Specialist Registrar (CESR), i.e. to become a consultant.
The two assessors themselves lacked the expertise to conduct the assessment, and one of them, Dr Scott, had been involved in the previous assessment in 2013. No witnesses of fact were called by the GMC.
The assessors did not observe Dr Hill’s practice, arguing that she was in a different job at the time of the assessment. That undermined the validity of the assessment. Previous observations of her work had led to positive comments.
The assessment report did not mention that there had been no complaint or incident involving any threat or alleged threat to the safety of a patient.
Dr Hill’s score of 90 per cent in the knowledge test probably compared favourably with that scored by the assessors themselves, whose scores were not disclosed despite them being asked.
The tribunal’s treatment of the evidence was unbalanced and lacked even handedness. There was an unfair emphasis on evidence adverse to Dr Hill. There were several aspects to this.
One was that the tribunal took no account of the Bolam principle that respectable medical practice does not involve only one response or treatment decision where a doctor is faced with a patient in a particular condition or with a particular diagnosis.
Further, the tribunal failed to weigh in the scales in Dr Hill’s favour the many instances of withdrawn criticism. If, say, half the criticisms are withdrawn during the hearing, the tribunal’s task is to weigh in the doctor’s favour the cases where criticism is withdrawn as instances of good practice against the other half of the cases where criticism remains as instances of alleged bad practice. The tribunal failed to do this.
The tribunal’s approach to the evidence of performance was unfairly selective, with a pattern of reliance only on adverse findings and ignoring evidence of good performance.
In support of this argument, Mr Hockton took me through the detail of several individual case studies as examples, he said, of cases where the tribunal had unfairly adopted an unbalanced approach to the weighing of the evidence. Although I do not here go through the detail, for the record those cases were, using the numbering adopted by Dr Hill in her witness statement, as follows: cases 43, 32, 34, 46, 49, 47, 15, 6, 13, 16, 5 and 4.
The tribunal placed undue reliance on the TPIs (third party interviews), where the interviewee was not called and Dr Hill was not able to cross-examine them. Reliance on them was unsafe and unfair, despite a standard “hearsay and weight” direction given by the legal assessor. It was wrong to prefer unsubstantiated third party evidence to that of Dr Hill; in particular, on the subject of poor “cannulation” and “intubation”; “failings” the tribunal said were “particularly serious” (see paragraph 127 of the determination on the facts).
Dr Milligan’s expertise was greater than that of either assessor, and he conducted a far more extensive review than did the assessors.
Dr Milligan’s evidence in support of Dr Hill was not given the respect it deserved; in particular, on the issue of Dr Hill’s record keeping, which Dr Milligan regarded as satisfactory. No reason was given for rejecting that evidence and it had not been identified by University College Hospital London as a particular concern.
The tribunal persistently relied on the evidence of Dr Gabbie and unjustifiably preferred it to Dr Milligan’s view, and sometimes that of Dr Scott too, in cases where Dr Gabbie maintained her criticism, even though she had been constrained on many occasions in cross-examination to withdraw criticisms. The tribunal paid no heed to the significance of the “alarming regularity” (in Mr Hockton’s phrase) with which Dr Gabbie withdrew criticisms that had been building blocks in the case against Dr Hill.
Finally, on the issue of impairment and sanction, which I can take together, Mr Hockton
submitted:
if the findings on dishonesty and deficient performance were flawed, the finding of impairment would obviously likewise be flawed. But, even if the findings of fact should stand, the finding of impairment was not justified.
The tribunal gave negligible weight to the positive written and oral evidence from the doctors at Newham University Hospital with whom Dr Hill was actually working. The only aspect of their evidence on which the tribunal unfairly siezed was the negative point they made concerning the two incidents where there had been poor communication.
The tribunal should have accorded greater respect to Dr Hill’s colleagues, the point that they had no concerns about her integrity and none about her fitness to practise either. The tribunal had misunderstood the concept of “close supervision” which does not necessarily mean the supervisor is in the room whenever the supervised doctor is working.
It was wrong to hold against Dr Hill her denial of a problem about her record keeping when, according to the doctors at Newham University Hospital, there was no such problem.
The sanction of suspension for 12 months was, therefore, wrong and excessive.
Submissions of the GMC
Mr Grundy, for the GMC in this appeal and below, countered with the following main arguments in defence of the tribunal’s decision, which again I paraphrase. On the issue of dishonestly answering the question about conditions on Dr Hill’s registration, he submitted:
Dr Hill’s arguments are a repeat of the arguments made to the tribunal, which it rejected and was entitled to reject.
When she completed the online application form in March 2015, Dr Hill knew that she had in the past been subject to interim conditions on her registration, which she decided, on her own admission, not to reveal to her employer.
The question asked drew no distinction between past conditions and present conditions, nor between interim conditions and conditions imposed as a sanction. There was no ambiguity in the question.
Dr Hill had claimed in evidence, without documentary support, that, if the answer “yes” is given, a drop down menu asks the further question, “Please specify the conditions to which your registration is now subject.” The tribunal was not bound to accept that evidence and was entitled to be sceptical about her credibility generally.
Even if her evidence about the drop down menu were correct, she should still have answered “yes” to the question and then gone on to explain that her registration had been subject to conditions in the past, but that was no longer so. Her omission to do so made her answers misleading and false.
The appellate court should not interfere with the tribunal’s assessment of her answer to the question and whether it was dishonest since that was very much a “value judgment” for the tribunal to make.
The account in Dr Hill’s witness statement that she interpreted the question in the “present tense” was designed to obfuscate and not elucidate the issue. The question was not phrased in the present tense and clearly referred to past conditions.
Secondly, on the issue of performance, Mr Grundy defended the tribunal’s finding of deficient performance, making the following main points:
the outcome of the 2013 proceedings had been that Dr Hill’s performance had been found deficient, but her fitness to practise had been found not to have been thereby impaired. That was not a finding in her favour.
The issue was not how she had performed in 2013, but in the 2015 assessment. Mr Grundy accepted that the assessment had to be fair and that that meant balancing the positive findings, including those where criticism had been withdrawn, against the negative findings, where criticism had not been.
There was no lack of balance in the tribunal’s approach to the evidence. It was for the tribunal to assess and weigh the evidence of all four doctors who gave evidence; the two assessors, Dr Hill herself and Dr Milligan. The tribunal was best placed to carry out the assessment of that evidence, having heard it over many days and weeks.
It was not correct that the tribunal had uncritically accepted the evidence of Dr Gabbie where it was adverse to Dr Hill and taken no account of the incidence of her backing down and withdrawing criticisms. There were instances where the tribunal had not accepted Dr Gabbie’s evidence and had accepted Dr Hill’s explanation.
Furthermore, the tribunal was faced with a widely differing variety of evidential assessments in the cases and discussions, and other material that had formed the assessment.
Thus, there were cases where Dr Hill herself had not agreed with Dr Milligan’s assessment (in one case, referring to a comment from him as “ludicrous”). There were others where Dr Milligan had agreed with the assessors or one of them. There was no unfair “cherry picking” by the tribunal of evidence adverse to Dr Hill.
Dr Milligan agreed with the assessors in some cases and Dr Hill did not agree with Dr Milligan in those cases. This had nothing to do with the Bolam approach to diagnosis and treatment.
Finally, on the issue of impairment and sanction, which again I can take together, Mr Grundy submitted as follows, and again I paraphrase:
in considering the issue of impairment, the tribunal was entitled to take into account its finding that Dr Hill had been less than truthful and that she lacked insight. The finding that there was a likelihood of repetition of misconduct was open to the tribunal and not wrong.
The 2013 Fitness to Practise panel had found that Dr Hill’s performance had been deficient, but that her fitness to practise was not thereby impaired. That panel had been influenced by positive testimonials from medical colleagues which had persuaded it that the likelihood of a repetition of deficient performance was small.
That had turned out to be a false hope. Mr Grundy accepted that the evidence from medical colleagues at Newham was positive, but so had been the evidence in 2013.
The tribunal was justified in reasoning that the finding of absence of likely repetition in 2013 had been shown by history repeating itself to have been wrong with hindsight. The tribunal was not bound to make the same finding again with the benefit of that hindsight.
There was clear evidence of two incidents of further communication problems even after Dr Hill had started working at Newham University Hospital. It was not unfair singling out of negative evidence to focus on those as supporting the finding of impairment.
The sanction was plainly not disproportionate or excessive. It was well within the margin open to the tribunal, and the court should accord the appropriate degree of deference to the tribunal’s decision on sanction. The tribunal was not bound to find that this was a case for conditions rather than suspension.
Reasoning and conclusions
Findings of fact:
I start with the issue of dishonesty and the negative answer given online to the question asked about conditions on Dr Hill’s registration. The tribunal interpreted the question when considering the submission of no case to answer. The operative part of the question was: “[h]ave conditions … been made on your registration … by … the licensing or regulatory body in the UK …?”
It is undeniable that, as a matter of language, the question does not differentiate between interim and substantive conditions, nor between lapsed and current conditions. It is clearly broad enough also to cover quashed conditions following an appeal. The word “conditions” in the question is not qualified in any way. I do not think the tribunal can be criticised for finding that the question meant what it said and for interpreting it literally.
It follows that the tribunal was entitled to reject Dr Hill’s interpretation of the question as being in what she called “the present tense.” The question is, straightforwardly, not expressed in the present tense. If it were, the question would have been phrased in a manner such as “is your registration subject to conditions?” The question is phrased in the perfect tense: “have conditions … been made on your registration …?”
I therefore agree with the tribunal that the question was not ambiguous. Whether it was a fair question to ask is another matter. But the fairness of the question and its meaning are two different things. Dr Hill’s interpretation of the question was not, in my judgment, tenable, even attempting to strain its meaning so as to avoid it being a possibly unfair question to ask.
She should have said to herself: “this is a question to which the answer is plainly ‘yes’, but it is not a fair question because the past conditions were interim and superseded by exoneration.” If she had been honest with herself about that, she would have appreciated the peril of answering “no” to a question to which the correct answer was plainly “yes”.
If she had wished to, she could presumably have sought guidance from the GMC or some other appropriate body on how to answer the question. The GMC already knew the answer; her employer did not. She could have protected herself against any suggestion of misleading by asking the GMC for its view. Whether she would then still have had to answer “yes” to the question will never be known, but the issue of dishonesty would surely not have arisen.
I would add that it is not necessarily unfair for an NHS employer to ask about lapsed interim conditions. The proceedings in which they were imposed did not lead to a finding of impairment, but Dr Hill’s performance was not found to be perfect in every way in the course of those proceedings. Furthermore, current interim conditions are also ambivalent in the sense that they are imposed without any adjudication of the merits; yet, they are undeniably something an employer must know about.
Whatever the fairness of enquiring into past lapsed interim conditions, the fairness of the question is not, as I have said, the same thing as its meaning. Mr Grundy is right to say that a duty to disclose is not a precondition of a “yes” answer to the question.
I am prepared to accept that the question was poorly phrased and may have been ill judged. At least arguably, it covered matters that should not have been asked. It is unsatisfactory for supplemental questions to be found in a drop down menu, if that is what happened. But, if the question was an unfair intrusion into irrelevant matters, it still meant what it said and the tribunal was right so to find.
Was the “no” answer dishonest and misleading? The tribunal was entitled to form a view about that based on the evidence. It was entitled to take into account the obviously untenable “present tense” reading of the question and the self-serving adoption of that untenable reading of it. Indeed, it was entitled to form a view of Dr Hill’s credibility, and to make its finding on the issue of dishonesty and misleading informed by that view. In summary, in my judgment, the tribunal’s finding of dishonest misleading cannot be faulted.
The failure to answer the question correctly and truthfully is less serious in a case where the negative answer conceals lapsed interim conditions than in a case where it conceals current and/or substantive conditions. But that is a point that goes to mitigation. The tribunal was clearly sensitive to the point that there is a spectrum of dishonesty and that this was towards the lower end, though not at the lowest end, of that spectrum. Otherwise, the sanction would surely have been erasure, as occurs in cases of dishonest theft and the like.
In its findings of fact, at paragraphs 36 to 38, the tribunal said that it took account of Dr Hill’s good character and positive testimonials, considered that a reasonable and honest person would expect the answer to the question to be “yes”, and that “it was more likely than not that you knew that your answer of ‘no’ to the question … was dishonest.”
As the law then stood, that is not an approach that is said to be wrong in law. Nor is the change in the legal approach to dishonesty since the decision (see Ivey v. Genting Casinos Ltd (t/a Crockfords Club) [2017] 1 WLR 679) relied on by Mr Hockton as altering the correctness of the tribunal’s legal approach. For my part, I cannot see why the tribunal’s findings were not properly open to it and why they should not be upheld.
For those reasons, I reject Dr Hill’s change to the upholding of the first three allegations against her. I do not think it is relevant whether lapsed interim conditions appear in the “List” on the GMC’s website or any NHS website. Nor do I think it is relevant that Dr Hill’s employer was under the misapprehension that the conditions to which she was subject were current and not lapsed.
I turn next to the issue of performance. I think this case, where the written and oral evidence was unusually voluminous even by the standards of this document-heavy jurisdiction, should be of concern to the MPTS, which may not benefit from case management powers to support an overriding objective of the kind found in the Civil Procedure Rules.
The dogged thoroughness with which Dr Hill opposed the performance allegations against her by every means at her disposal is, in one sense, to be admired. She left no stone unturned in her defence of her performance. But a consequence of the approach adopted by the defence was that the hearing became very lengthy and document-heavy.
This made more difficult Dr Hill’s task, skilfully and eloquently though it was undertaken by Mr Hockton, of persuading this court, even on a rehearing of the issues (albeit without oral evidence) rather than a review exercise, that the tribunal’s assessment of the witnesses and the other evidence before it should be gainsaid in this court. This is particularly so where the degree of deference usually accorded to tribunals of this kind is at its greatest, as it is in matters of judgment of clinical practice.
In the present case, the tribunal members, without any disrespect, came from backgrounds that would not endow them with deep expertise in general paediatrics. But the tribunal indisputably had the benefit of long familiarity over weeks and months with the parties, the documents, the witnesses and the arguments. Even on the steep learning curve I had to navigate to hear this appeal over four days (including pre-reading), I was at a considerable disadvantage when it came to assessing the probative value of evidence given orally, in particular, by looking at transcripts rather than seeing and hearing the witnesses.
I would, therefore, hesitate long and require considerable persuasion before being satisfied that the tribunal’s assessment, reasoning and decision on the performance issues was wrong. It is in that context that I approach Mr Hockton’s submissions seeking to persuade me that they were wrong.
In its determination on the facts, the tribunal began with an assessment of the witnesses. They formed a favourable impression of the two medical assessors (see paragraphs 35 and 36 in the decision dealing with the submission of no case). They formed an unfavourable opinion of Dr Hill’s credibility (see paragraph 11ff in the decision on findings of fact).
They found that Dr Hill sought to mislead about relations with colleagues and record keeping and that her replies were sometimes dismissive, rude and appeared arrogant. They preferred the evidence of the medical assessors where there was a conflict. They formed a partially favourable view of Dr Milligan’s evidence, although they considered that he exceeded his remit on some occasions.
Although these assessments of the witnesses did not bode well for a favourable outcome for Dr Hill; and although Mr Hockton said these assessments were unfair, I cannot see any basis for saying that the tribunal was doing anything other than its job in making the judgments that it made on the reliability and credibility of the witnesses. It gave cogent reasons for its views and, unlike myself, it had seen and heard the witnesses.
The tribunal dealt with the “overall fairness” points made by Mr Hockton before it: that the scope of the assessment was inappropriate; that the cases had been taken from the start of Dr Hill’s employment at University College London Hospital; that her practice had not been observed; that “OCSEs” were “artificial” because the participants are not real patients; that Dr Gabbie had been unconsciously biased; and that the third party interviewees had not been called.
I can find no unfairness in the tribunal’s rejection of those arguments. They were points to be weighed in the scales and, in my judgment, they were properly weighed. The tribunal was not bound to dismiss the allegations of poor performance on the strength of them alone.
The tribunal then went on to consider each of the performance related allegations that had not been withdrawn, and the evidence for and against the proposition that Dr Hill’s performance in the areas of assessment, clinical management, record keeping and working with colleagues was “unacceptable”, and that it gave “cause for concern” in the areas of “relationships with patients” and “operative/technical skills”.
In relation to the withdrawn criticisms, the tribunal found (see paragraph 44 of the decision dealing with the submission of no case to answer) that, after discarding the criticisms withdrawn by the assessors during their evidence and those rejected by the tribunal as not supported by the evidence, “there is sufficient remaining upon which a Tribunal could find the overall assessments proved.”
I do not think there was any unfairness or misdirection in that decision, provided that the performance in the areas in question is assessed overall, including by reference to the withdrawn or unsupported criticisms. That depends in practice whether the tribunal was justified in making the findings it did of “deficient” performance, and later of impairment of Dr Hill’s fitness to practise, to which I am coming.
In its determination on the facts, in a long passage at paragraphs 50 to 136, the tribunal made its detailed findings of fact in relation to each area of practice in which it was alleged that Dr Hill’s performance was either “unacceptable” or (in two cases) gave “cause for concern”. I have considered carefully the findings made in this long section of the determination and I have carefully assessed the tribunal’s findings in the light of the written and oral evidence I have been shown and the submissions made, particularly by Mr Hockton, when addressing me on the sample case studies he selected from among those findings.
The evidence and other documents to which I was taken by Mr Hockton were principally the report of Dr Milligan, the long witness statement of Dr Hill, extracts from the assessors’ report and extracts from the oral evidence of the four doctors who gave evidence at the fact finding stage. I found myself unpersuaded that the lack of balance of which Mr Hockton complained, is made out.
It is true that the tribunal’s assessment of Dr Hill’s performance tended to be unfavourable to her case and favourable to the GMC’s. But that does not, of itself, show a lack of balance. I was not persuaded that the tribunal showed undue unwillingness to rely on Dr Gabbie’s evidence. I was shown instances where it was rejected and Dr Hill’s explanation preferred. Nor am I convinced that there was any unfair lack of respect for Dr Milligan’s expertise and evidence. I accept that Dr Hill had not herself agreed with Dr Milligan on every point on which he opined.
I find myself led to the conclusion that the tribunal’s findings in relation to Dr Hill’s performance were not clearly wrong. Much of the reasoning is highly persuasive; other parts perhaps less so, but far from obviously flawed. I remind myself that I am not concerned with whether I would have reached the same conclusion as the tribunal, had I been the tribunal of fact.
Mr Hockton’s other general points (disregard of the Bolam principle, the assessors’ lack of experience, the absence of any instance of a threat to patient safety, the significance of the 2013 assessment materials and the high score of 90 per cent in Dr Hill’s knowledge exercise) do not persuade me otherwise. These are forensic points that were made to the tribunal, and I am not persuaded that they failed to weigh those points when making their decision, which was careful, long and detailed.
I, therefore, reject the challenge to the findings of fact leading to the conclusion that Dr Hill’s performance was deficient as alleged in the fourth, fifth and sixth charges.
Impairment:
It follows from my decision to uphold the tribunal’s decisions, both in relation to the dishonesty charges and in relation to performance charges, that the tribunal was justified in characterising as “misconduct” the manner in which Dr Hill filled in the online application form and as “deficient performance” the manner in which she performed her duties in the cases assessed by the assessors.
The next issue the tribunal had to deal with was whether Dr Hill’s fitness to practise was thereby impaired. They determined that issue on 25 September 2017. They began by setting out the evidence and documents relevant to that issue, most importantly the mainly positive evidence from three doctors at Newham University Hospital, and the submissions made for and against impairment.
There can be no possible complaint about characterising the dishonesty as “serious misconduct”, even though the tribunal found (see paragraph 20 of the impairment determination) that it was “not at the highest end of the spectrum of dishonest conduct”.
All dishonesty is very serious. I can find no basis for criticising the finding that Dr Hill lacked insight into her dishonesty or the reasoning in support of that conclusion (see paragraphs 27 to 33 of the impairment determination). Indeed, cases in which a doctor has behaved dishonestly are likely to impair fitness to practise in nearly every case.
As regards the performance issues, the tribunal was unpersuaded by the evidence of the three doctors from the hospital at Newham. The tribunal considered the question of insight and likelihood of repetition. In considering that issue, Mr Hockton complains that they focused only on the small amount of negative evidence given by the three Newham doctors and not on the overwhelmingly positive parts of their evidence.
I was at first attracted to Mr Hockton’s argument that the treatment of that evidence lacked balance. But I am persuaded, in the end, by Mr Grundy’s defence of the tribunal’s reasoning, which centres on paragraph 36 of the tribunal’s determination on impairment. Having found at paragraph 34 that the defects in performance were “capable of being remedied”, the tribunal reasoned in paragraph 36 that the 2013 Fitness to Practise panel had taken the view (at a time when positive evidence was before that panel) that performance concerns then had been addressed and remedied.
Yet, within two years, further performance concerns had emerged and found to be well grounded. The tribunal was entitled, on that evidence, to conclude that there was a likelihood of repetition of the conduct found to have amounted to deficient performance. I am, therefore, persuaded that the tribunal was fully justified in finding Dr Hill’s performance impaired by reason of her deficient professional performance, as well as by her misconduct.
Sanction:
That leaves the challenge to the sanction imposed; 12 months’ suspension from practice. The decision of the tribunal in relation to sanction was given on 29 September 2017. The GMC, through Mr Grundy, did not seek erasure even though there was a dishonesty offence.
That was, with respect, sensible and right. Although dishonesty is very serious, erasure would not have been proportionate here, given the circumstances in which the question was asked, the understandable reluctance of Dr Hill to answer it, and the fact that the conditions which Dr Hill declined to disclose were not current or “substantive” conditions.
Mr Hockton submitted below that the circumstances were wholly exceptional and that the dishonesty offence should not attract any sanction at all. He pointed to the absence of any actual or intended gain from the nondisclosure and to Dr Hill’s previous good character. In relation to performance, Mr Hockton argued below that, if any conditions were necessary, these should be minimal and narrowly drawn. He referred once again to the positive testimonials and evidence from the Newham doctors.
The tribunal approached its task in the usual way, by reference to the Sanctions Guidance (July 2016 edition) and the document entitled Good Medical Practice (2013 edition). It reminded itself of the need to protect the public rather than punish the doctor, and of the principle of proportionality.
The tribunal then considered aggravating and mitigating features, including, on the aggravating side, the manner in which Dr Hill had given evidence at the tribunal and her persistent refusal to accept the propositions that she had been on a course about record keeping and that she had no problem with her record keeping, and, on the mitigating side, the positive evidence of support from the doctors at Newham University Hospital.
I can find no fault with the tribunal’s conclusion that Dr Hill lacked insight into the shortcomings which the tribunal had found to exist. It is a feature of the disciplinary system that a doctor who is found to have fallen short or misbehaved is expected to recognise and address the tribunal’s findings to that effect, even if she disagrees with the findings and however strongly she disagrees with them.
A doctor is, of course, entitled to maintain the stance that the tribunal’s findings are wrong and unfair. But, unless this court intervenes to support that proposition, the doctor must take the consequences of maintaining that stance, which is difficult to combine and reconcile with the concepts of (in the jargon) “remediation” and insight.
The tribunal then, in the usual way, considered the available sanctions in ascending order of gravity. It cannot be faulted for rejecting the option of taking no actions, in the absence, as it observed at paragraph 25 of its determination on sanction, of “both insight and remediation”.
The tribunal went on to consider imposing conditions on Dr Hill’s registration and rejected the idea, at paragraph 26ff. They noted that Dr Hill’s performance had been found wanting on two previous occasions. They referred to the evidence of Dr Alam and Dr Liebeschuetz that two incidents had occurred at the Newham University Hospital which required remedial action. These pointed to a continuing difficulty in communicating adequately with colleagues. They occurred at a time when Dr Hill was working under “close supervision”.
The tribunal referred to the sanctions guidance on conditions. At paragraph 32, the tribunal noted that Dr Hill had attended the hearing without accepting any of the shortcomings of which she stood charged and had provided no evidence that working under conditions had helped her reflect on her shortcomings and accept them.
The tribunal then reasoned in paragraph 32 that “in this regard, the imposition of conditions has had no effect whatsoever and, therefore, this tribunal is of the view that a further period of conditions is unlikely to be effective”. They did not make clear whether the “no effect whatsoever” was on her inability to accept her shortcomings or on her performance, or both.
I think the most likely interpretation is that it was both. The tribunal was saying that conditions had not helped because the doctor subject to them had not responded to what they were there to achieve, namely an improvement in performance which had not materialised, as shown by the two incidents at Newham University Hospital.
The tribunal went on to reason at paragraph 33 that, in relation to the offence of dishonesty, Dr Hill had “demonstrated neither remorse for it nor insight into it”. Therefore, imposing conditions would not set standards of conduct nor “send out the appropriate signal”.
For those reasons, the tribunal rejected the imposition of conditions and, considering the seriousness of the offences, determined that the appropriate period of suspension was the maximum of 12 months.
After careful reflection, I have come to the conclusion that I should not take it upon myself to interfere with the decision to impose that sanction. I am not satisfied that it was wrong for the tribunal to impose it.
In relation to the dishonesty offence, the imposition of conditions on a doctor’s registration is often likely to be inappropriate as a way of maintaining public confidence in the profession. Suspension will nearly always be appropriate where a dishonesty offence is committed, even if it is not serious enough (as often it will be) to call for outright erasure. I can see no reason why this was not such a case. There could, in my judgment, have been no quarrel with a period of suspension of, say, six or nine months, possibly even of 12 months, for the dishonesty offence alone.
As to the deficient performance, Mr Hockton’s main criticism centred on the evidence from the doctors from Newham and the submission that the tribunal overlooked it or ignored it or unfairly treated it in an unbalanced way. As I have said, after careful reflection, I do not accept that criticism. There had always been elements of good performance in Dr Hill’s repertoire. It was the worrying persistence of instances of poor performance which concerned the tribunal.
It was entitled to be concerned by the two incidents that had occurred at Newham. Had it not been for the dishonesty offence, many tribunals, and perhaps this one, would have opted for two or three years of strict or fairly strict conditions rather than suspension. The “sentencing” exercise was unusual, in that it had to meet two separate types of offending which were qualitatively different from each other and did not overlap at all.
I do not think it would do justice to the tribunal’s work to say that it went wrong in deciding to impose a suspension of 12 months here. I emphasise that, in reaching that opinion, I am in no way differing from the view of Lane J, who dealt with the different question of whether the interim suspension should be lifted. In my respectful view, he was right to lift the suspension for the reasons he gave. This was clearly not a case where suspension needed to be immediate.
Conclusion:
I must, therefore, dismiss the appeal. The tribunal’s decision is not shown to have been wrong. I very much hope that the GMC and the MPTS will find a way in future to limit the length of tribunal hearings such as this one, which lasted 62 days. The importance of these issues to doctors whose careers may be at stake is very high, but so is the need for proportionality in conducting a process that consumes substantial public resources.
For example, in the present case, the parties might each have been invited to select five test issues rather than litigating more than 50, as they did. I should emphasise that, by making that observation, I am not in any way seeking to criticise the GMC, the MPTS or the representatives of the doctors, including this one, who regularly do their best in difficult circumstances to get these cases heard.
I am not in a position to express a view on whether the rules, as currently drafted, permit the sort of case management and application of proportionality in support of an overriding objective that is exercised in cases where the Civil Procedure Rules apply. I do hope, however, that thought will be given to ways of containing contested cases, such as this, within acceptable limits.
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