CO/3550/2009 
Neutral Citation Number: [2009] EWHC 2188 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Friday, 10th July 2009
 
B e f o r e: 

MR JUSTICE COLLINS
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Between: 
THE QUEEN ON THE APPLICATION OF RIAD ROOMI 
Claimant

v 

GENERAL MEDICAL COUNCIL 
Defendant 
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Ms Fiona Neale (instructed by Messrs Radcliffes Le Brasseur Solicitors) appeared on behalf of the Claimant
Ms Sarah Lee (instructed by the General Medical Council) appeared on behalf of the Defendant
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J U D G M E N T
1.	MR JUSTICE COLLINS:  This is an appeal by Mr Roomi, a registered medical practitioner, against a decision of a Fitness to Practise Panel of the GMC of 20th March 2009, which concluded that his fitness to practise was impaired by reason of his deficient professional performance.  As a result, it imposed conditions on his registration for a period of 12 months.  It is not necessary to spell them out.
2.	The factual background can be stated relatively briefly.  Mr Roomi graduated from the University of Baghdad in 1977.  He came to the United Kingdom and obtained a provisional registration and practised as a surgeon, including three years doing plastic surgery, between 1979 and 1988.  He obtained a full registration in 1989 and from then until August 2000 practised as a cosmetic surgeon in private practice.  In the summer of 1999, two consultant plastic surgeons made complaints to the GMC questioning Mr Roomi's competence.  As a result, a performance assessment was carried out in 2003.  This was generally favourable save for two particular areas, namely rhinoplasty and otoplasty, where the Panel believed formal retraining was needed.  Such retraining could result in sufficient improvements.  The assessors also expressed concerns which did not extend to findings of serious deficiencies about his standard of record keeping and constructive participation in audit assessment and appraisal.
3.	He had left the United Kingdom in 2000 and practised in Saudi Arabia.  In May 2004, he agreed to undergo a second performance assessment and that was held in January 2006.  It reported that his performance had been deficient in some areas of the procedures he had had to carry out in the assessment process but that these could be cured by remedial action.  The recommendations it made were these: 
"1. Initially in UK he should work as part of a Team in his speciality for about 6 months.  He should not work in isolation.  
2.  During this period he should have a named supervisor, approved by the GMC ... [and details were given as to how that might be done].  
3.  His practice should be within the framework of Clinical Governance especially participation in clinical audit and regular appraisals which should be formally document[ed].  
4.  After a period of about six months the GMC may allow him unrestricted practice, provided the reports from the supervisor are satisfactory."
Other than the recommendation, numbered 3, no comments were made by the assessors in relation to audit assessment or appraisal.  
4.	The matter was referred to a Fitness to Practise Panel but the hearing did not take place until January 2009.  I fear that the delays in the GMC are unfortunately somewhat excessive.  The notice of hearing, which was required by rule 15 of the General Medical Council (Fitness to Practise) Rules Order of Council 2004 (2004 No 2608), stated as follows, and in the light of the grounds put forward in support of this appeal, it is I think necessary to read it.  It is not very long.  The allegation set out in the notice was follows: 
"That being registered under the Medical Act 1983 
1. In June and July 2003 you underwent a General Medical Council assessment of the standard of your professional performance; 
2. In phase 1 of the assessment the assessment team found that the standard of your professional performance was unacceptable in the following areas 
a. record keeping, 
b. constructive participation in audit, assessment and appraisal, 
3. In phase 1 of the assessment the assessment team found that the standard of your professional performance was a cause for concern in several areas 
a. assessment of patients' condition 
b. providing or arranging investigations 
c. providing or arranging treatment 
d. referring patients when indicated with working within limits of competence 
e. educational activities; 
4.  In phase 2 of the assessment in the Surgery Core Knowledge Test the assessment team gave you a mean score of 90.73%.  
5. In the Structured Oral Test the assessment team gave you 18 global judgements of acceptable and one a cause for concern; 
6. In the Tests of Communication Skills the assessment team concluded that your performance was adequate in each of the two stations;
7. In the Practical Test of Surgical Skills your overall score was 100 which was below the acceptable level.  
8. The assessment team's formal opinion was that 
a. The standard of your professional performance was deficient in the area of rhinoplasty and otoplasty,  
b. That the standard of your professional performance was likely to be improved by remedial action.  
9. By a letter dated 6 May 2005 [I think it should be 2004, but it matters not] you agreed to a 'Statement of Requirements' which included undergoing a further assessment of the standard of your professional performance; 
10. In January 2006 you underwent a further assessment of the standard of your professional performance; 
11. In the Surgery Core Knowledge Test the assessment team gave you a mean score of 95.42% which was above the minimum acceptable score of 85%; 
12. In the Structured Oral Test the assessment team graded your performance as acceptable in each of the six topics; 
13. In the Tests of Communication Skills the assessment team concluded that your performance was adequate in each of the two stations; 
14. In the Practical Tests of Surgical Skills you scored a total of 91 on 7 core stations, which was below the acceptable level; 
15. The assessment team's formal opinion was that  
a. The standard of your professional performance was deficient,  
b. That the standard of your professional performance was likely to be improved by remedial action;
16.  The assessment team's findings and conclusion as set out in..."
There was a mistake in the notice, which was accepted and which was corrected at the hearing.  It should have read: 
"...paragraphs 11 to 15 above was appropriate.
And that by reason of the matters set out above your fitness to practise is impaired because of your deficient professional performance."
Thus the notice related to the practical tests which fell below the acceptable level and that was the allegation which the appellant faced and that was the basis upon which the case was presented against him and argued on his behalf at the hearing before the Fitness to Practise Panel.  Indeed Ms Lee accepted that the case was indeed based solely on the deficiencies identified by the assessment panel in his skills.  It was not suggested that his standard of professional performance was deficient because of a failure to participate in audit or appraisal.  
5.	Many days of the hearing were taken up with evidence relating to the assessment.  The Committee's task was first to establish the material facts and secondly to decide whether those facts found justified a conclusion that the appellant's performance was deficient and then, if it was deficient, they would go on to consider what sanction should be imposed.  The assessment itself involved a number of separate practical tests described as stations.  The total time allocated for these various stations was two hours but each had its individual time.  The appellant was, I gather, not told that he had any particular time within which to carry out each station but, since he would be marked down if he did not carry out any particular requirements, no doubt if he took too long this would go against him.  It is perhaps obvious that a surgeon who takes an unreasonably long time to carry out procedures may properly be regarded as showing a professional deficiency.
6.	The appellant was set eight stations.  Each contained a number of separate matters which were set out in checklists and each of the checklist items carried its individual mark.  In fact, each station carried I think a total of 20 marks.  The appellant was not told what the various items which were the subject of the checklist were and the GMC is concerned that they should not be disclosed so that others who take skill assessments should not have access to them.  That concern is entirely reasonable.  However, it led in this case to an unfortunate failure to disclose the marking sheets until the hearing had commenced and an equally unfortunate failure to serve them on the appellant's representatives until the day of the hearing before me.  They had in fact been returned to the GMC after the hearing before the Fitness to Practise Panel.  Undertakings were given by the appellant's solicitors both at the hearing before the Fitness to Practise Panel and on this appeal.  I hope that in future the GMC will appreciate that, if there are to be challenges to the conclusions of the assessors, the marking sheets are likely to be relevant and so arrangements must be made to ensure that they are disclosed, subject to proper undertakings to avoid disclosure beyond the case in question, in reasonable time, both for the hearing before the Panel and any appeal.
7.	Some of the items on the checklists involve the assessors observing whether the examinee has carried out a particular requirement.  Either he has or he has not and no judgment is involved on the part of the assessors.  Thus it is difficult to see that there should be disagreement between them in respect of those items.  Other items do involve judgment and it is not at all surprising that there may be differing views as to whether the examinee has done whatever is required of him correctly.  
8.	The two assessors gave evidence and were cross‑examined in some detail.  The marking sheets showed that there were differences in some of the items on the checklists which involved no judgment.  That is indeed unsatisfactory.  While no doubt it is important that each assessor forms an independent judgment and gives marks accordingly, there should be no difference over items which involved no judgment.  When they came to give evidence three years later, it is hardly surprising that neither could remember the details and each generally asserted that he correctly recorded what he observed.  
9.	I was told that the GMC's practice is to put the marking sheets to an audit and that they are then examined and an average mark is produced.  This, it was suggested, was fair, since the discrepancies would cancel each other out.  If that is the practice, it should be surely be announced in advance and it is, certainly where there have been differences over items involving an exercise of judgment, reasonable.  Ms Neale submitted that the committee ought to have decided which view it accepted in relation to individual items where judgment was not involved.  This, as it seems to me, is an almost impossible task, unless one or other of the assessors admitted possible errors.  In the absence of any such admission, or any positive evidence, it seems to me that fairness dictates that the examinee should be given the benefit of doubt and if one assessor had recorded that he did whatever he should have done that should be accepted and the marks applied accordingly.  
10.	There was a time problem.  The whole exercise was completed in one hour 25 minutes instead of two hours.  Neither assessor could recall why the time had been shortened.  It is important because of the marking down of items on the checklist if they are not done.  If time pressure resulted in a failure to do any of the items, it would clearly be unfair to mark the examinee down as a result.  It is to be noted that one of the assessors commented on the station which is entitled "Full‑fitness and split‑skin graphs", for which 20 minutes were allowed, "only given 5 minutes".  He also refers in his comments to a time shortage and so he put the total down from 20 to 17.  
11.	The other assessor did not reduce the total.  In reality, if there is a shortage of time which is not the fault of the examinee, there must be an adjustment of the total marks since it would be wrong to mark down for failure to do items when there was no time to do them.  Ms Lee accepted that in principle this should have been done but said that on the facts it would not have brought the appellant's marks above the level of acceptability.  
12.	One of assessors decided that the appellant's overall performance was acceptable, the other that it was not.  When the average marks were disclosed, each took the view that it was not and thus the formal opinion was that the appellant's professional performance had been deficient "in the area of practical tests of surgical skills has demonstrated in the TOC".  Their opinion was that the appellant was fit to practise as a part of a clinical team in the United Kingdom for about six months, followed by unrestricted practice if the GMC was satisfied with his progress.
13.	I have referred to the practical test to indicate that there are real concerns about the manner in which they were marked and the assessment made.  However, I do not, for reasons which will become clear, have to form any final view on the ground of appeal which asserts that the Committee was wrong to find as a fact that the process was such as to justify the finding of deficiency.  This is because the appellant was able to call evidence to show that he had taken steps to improve his skills since 2006.  That evidence led the committee to decide that, albeit it found that the allegations in the notice were proved, the appellant had since taken remedial action which meant that the Panel were satisfied on the basis of all the evidence that the deficiencies identified during the practical tests of surgical skills had been remedied.
14.	Thus the appeal should, on the basis of the allegations contained in the notice and the way the hearing had been conducted, have been allowed but the Panel justified their finding of continuing deficiency on the basis of the failure to carry out regular or systematic medical and clinical audits.  What was said, so far as material, was this: 
"Dr Kadhim [who had conducted a peer review of the appellant's practice on 13th January 2009], in his letter of 21 January 2009, stated that you have joined him in some operative sessions for skin grafting.  You had carried out a few split thickness skin grafting procedures and Dr Kadhim stated that he was impressed by your performance and was confident that should the necessity arise, you would be able to do partial or full fitness skin grafting to a high standard."  
Pausing there, that was one of the areas in which it was suggested there had been deficiencies at the 2006 assessment.  Going on with the conclusion of the Panel: 
"Dr Kadhim, in his letter, also stated that you discussed various topics and exchanged opinions on challenging cases.  However, the Panel does not consider that this amounts to regular and systematic medical and clinical audit.  Therefore, the Panel is satisfied that these deficiencies of your professional performance have not been remedied."
Then, under the heading "Is there a risk of the deficient professional performance being repeated" and whether there is "a continuing risk to patients", they say this: 
"However, in considering whether you present a continuing risk to patients, the Panel has considered all of the evidence before it, including the formal opinions and recommendations of the 2003 and 2006 assessment teams.  Whilst the Panel accepts that you have remedied the deficiencies identified in the 2006 Practical Tests of Surgical Skills, it is concerned that you have not addressed the issues in relation to education, continuing professional development and audit.  The Panel is also concerned about the level of insight you have shown in relation to these issues."
Then it refers to Good Medical Practice, in the 2001 edition, and the statement: 
"'You must work with colleagues to monitor and maintain the quality of the care you provide and maintain a high awareness of patient safety.  In particular, you must: 
‑ take part in regular and systematic medical and clinical audit, recording data honestly. Where necessary you must respond to the results of audit to improve your practice, for example by undertaking further training...'
The Panel is satisfied that you have not addressed this principle in the intervening period between your 2003 performance assessment and this hearing.
The Panel has considered the 2003 performance assessment report and compared the findings of the assessment team in 2003 with the findings of the assessment team in 2006.  In 2003, the assessment team found the area of constructive participation in audit, assessment and appraisal to be unacceptable and made the following comment:
'The panel found little in the way of audit, assessment or appraisal activity in their observation and investigation of Dr Roomi's performance.  It was this lack of critical self appraisal which caused the panel to judge Dr Roomi unacceptable in this category.  There was a glimmer of hope because Dr Roomi did acknowledge a mistake and appeared to learn from that mistake ... however there was no formal auditing or appraisal mechanism in place.'  
In 2006, the assessment team stated:  
'The formal opinion from the [Tests of Competence] TOC is that Dr Roomi has made some improvements in some areas which were identified as deficient in his first assessment, ie rhinoplasties and otoplasties but there are still some areas of concern...'
Whilst the assessment team stated that the areas of concern were most evident in the practical procedures, they went on to recommend that: 
'3. His practice should be within the framework of Clinical Governance especially participation in clinical audit and regular appraisals which should be formally documented...'
They then went on to make the points that he was dealing as a cosmetic surgeon with vulnerable patients and there was a need for systematic audit of his practice and that this had not taken place and thus there were ongoing deficiencies.
15.	Ms Neale had in fact applied to the Panel to delete paragraph 3 from the notice.  Paragraph 3 dealt with some of the findings by the 2003 assessors.  It was submitted to the Panel, against her, that it was relevant as a historical backdrop which could provide a measure to assist in considering progress and there had been no peer record since.  
16.	In answering the submission made by Ms Neale in that respect, the Panel noted that Ms Neale had reminded it that it was dealing with a relatively narrow matter relating to the results from the practical tests of surgical skills undertaken as part of the performance assessment in 2006.  The Panel then referred to rule 17(3)(a) of the 2004 Order of Council which states: 
"(3) Where it appears to the FTP Panel at any time that‑ 
 (a) the particulars of the allegation or the facts upon which it is based, of which notice has been given under rule 15, should be amended; and 
 (b) the amendment can be made without injustice, 
it may, after hearing the parties and consulting with the Legal Assessor, amend the particulars on appropriate terms."
It went on: 
"The Panel acknowledges that paragraph 3 does give a historical context to the case.  It also recognises that it may provide an indicator as to how you have progressed since your performance assessment in 2003.  In reaching its decision the Panel has borne in mind the principle of fairness to both you and the GMC and it has taken account of the public interest.  
The Panel, at stage 2 of these proceedings, must consider whether your fitness to practise is impaired.  In that regard, the Panel considers that paragraph 3 may become relevant when considering all the aspects of this case.  For these reasons, the Panel does not accede to Ms Neale's application to amend the allegation by deleting paragraph 3."
17.	Now, that last paragraph might have caused a concern that the Panel was thinking of going beyond the terms of the notice of allegation which had been served, but it did not indicate that it intended to amend the notice to raise those issues nor, and this is perhaps of the greatest importance, did it give the opportunity to Ms Neale to deal with the matter and, if necessary, to consider whether any evidence might be required to be called on behalf of the appellant to deal with this particular issue.  It is important to bear in mind that rule 15 requires that a notice of hearing should be served on the practitioner as soon as reasonably practicable after an allegation had been referred to a FTP panel and by 15(2)(a) it is provided that the notice of hearing shall particularise the allegation against the practitioner and the facts upon which it is based.  It is clear from a combination of 15(2)(a) and 17(3), and indeed it is perhaps self evident, that the practitioner faces an allegation which is contained in the notice and no other allegation, unless that notice is amended in accordance with rule 17(3).
18.	It is also to be noted that questions were asked of Mr Roomi by members of the Panel which appeared to be relevant only to the question of audit and appraisal.  No doubt if members of a Panel feel concern based on the material before them on issues which are not contained in the notice of hearing, they are entitled to raise them.  But they ought to have been advised that they could not properly rely on them unless they did form part of the allegation made against the practitioner and so they could not properly be taken into account against him unless there was the necessary amendment to the notice.
19.	It is perhaps in the circumstances of this case to be noted that it is surprising that the legal assessor did not spot the failure to comply with the proper practice that was occasioned by the Panel.  It is elementary, quite apart from the question as to whether they should be contained in the notice, that any allegations which are going to be relied on against a particular person must be put to him so that he is able to deal with them.  That did not happen in this case because, as is conceded, the whole hearing was on the basis that what was in issue was his skill, nothing else.  It seems to me that in the circumstances the legal assessor ought, if necessary of his own volition, to have made it clear to the committee, giving them proper advice, that they must comply with the rules and they must not do what they apparently were intending to do.
20.	The legal assessor is an independent person.  He is not there to assist the committee in giving advice that they want to hear, he is there to assist the committee by indicating to them what they can and what they cannot in his view do, and, if they find the advice in a particular case unpalatable, so be it, but they must follow it, unless of course there is good reason to believe, after perhaps hearing submissions by counsel involved in the case, that particular advice is not correct.  But, short of that, if he advises them as he should, it will avoid problems such as have arisen in this case, namely the need to appeal after a lengthy and costly hearing and the inevitable allowing of the appeal on the basis of breach not only of the rules but also of natural justice and, as I say, I am somewhat surprised that the legal assessor did not in the circumstances step in.  If he had, it could have avoided the problems created by the need to appeal.  As it is, this appeal must be allowed.
21.	I had some discussion with counsel as to the appropriate course which I should adopt.  Ms Neale submitted that it was not appropriate to send the matter back because there was nothing in the notice as it stood which would justify any further hearing.  Ms Lee submitted that it would be possible, and indeed appropriate, to send the matter back and to enable an application for amendment of the notice to be considered and, if necessary, for the appellant to be able to call further evidence.
22.	It seems to me, in the circumstances of this case, that that course would not be appropriate.  If the GMC decide, and it will be now some ten years since the original complaint was made, that there is indeed a need for further allegations to be put, then that should be considered in the proper fashion, for the protection of the doctor, namely by making any relevant allegations, he having been given the opportunity of putting forward any material that he wishes to put forward in opposition to any such allegation, to see whether indeed there is anything now that ought to go to a Fitness to Practise Panel.  I am bound to say, having regard to the history and having regard to the steps that Mr Roomi has clearly taken and his recognition of the need for continuing audit and assessment, that the time has come when it would be unreasonable to pursue a case against him further.  As I say, ten years is quite long enough for a doctor to have matters of this sort hanging over his head and there must be finality.  Of course, if there were serious grounds for considering that he might be a risk to the public, different considerations would apply, but if that is indeed, in the view of the GMC, the case then they can no doubt take the appropriate action.
23.	In those circumstances, what I will do is simply to allow this appeal and the result will be that the conditions will be removed.  I have already discussed with counsel the issue of costs and it was accepted by Ms Lee that it would be appropriate to make an order for costs in favour of the appellant.  That will be subject to detailed assessment unless agreed.
24.	MS NEALE:  Thank you very much, my Lord.  Your Lordship is quashing the finding of impairment, with the result ‑‑ 
25.	MR JUSTICE COLLINS:  Well, I am allowing the appeal and the finding of impairment, deficiency, is automatically quashed.  What I am doing is effectively to say that the appeal against the notice must be allowed.
26.	MS NEALE:  Thank you very much and we have your Lordship's associate's email address and we are going to email the sum of costs that is agreed, because I am afraid that neither of us knows what it is.
27.	MR JUSTICE COLLINS:  Well, if you agree costs that is not problem.
28.	MS NEALE:  I am sure they will be agreed.
29.	MR JUSTICE COLLINS:  It does not need, does it, to be included in the court order, the sum? 
30.	MS NEALE:  It probably does not if we agree it between ourselves. 
31.	MR JUSTICE COLLINS:  I think that is a matter.  
32.	MS NEALE:  Thank you very much.
33.	MR JUSTICE COLLINS:  If you do not agree it goes not to this court, it goes to a costs judge.
34.	MS NEALE:  Thank you very much.
35.	MR JUSTICE COLLINS:  All right.