Neutral Citation Number: [2009] EWHC 2682 (Admin)

CO/2519/2009 
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Monday, 12 October 2009
 
B e f o r e: 

MR JUSTICE KENNETH PARKER
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Between: 
CLEMENS GERSTENKORN 
Claimant

v 

THE GENERAL MEDICAL COUNCIL 
Defendant 
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Computer‑Aided Transcript of the Stenograph Notes of  
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The Claimant appeared in person
Miss Kate Gallafent (instructed by The GMC) appeared on behalf of the Defendant
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J U D G M E N T
1.	MR JUSTICE KENNETH PARKER:  This is an appeal brought under section 40 of the Medical Act 1983 ("the Act") by Clemens Gerstenkorn against the decision dated 13 February 2009 of the Fitness to Practise Panel ("the Panel") of the General Medical Council ("the GMC") that his fitness to practise was impaired by reason of his misconduct and deficient professional performance, and that his name should be erased from the medical register.  
2.	There was a three‑day hearing before me of this appeal, in which Mr Gerstenkorn appeared in person, and Miss Kate Gallafent of counsel appeared for the GMC.  I was greatly assisted by Miss Gallafent's clear and comprehensive but concise written and oral submissions.  
The background to this appeal 
3.	From 1 August 2003 Mr Gerstenkorn worked as a Consultant Renal Failure Surgeon at Belfast City Hospital ("BCH").  On  11 November 2004 the GMC was notified by BCH Trust of a number of concerns about him, and further details were provided on 1 December 2004.  The concerns were about his clinical decision‑making, surgical competence and general medical knowledge.  The GMC requested further information from the BCH Trust on 30 December 2004, and Mr Gerstenkorn was notified of the referral from it.  
4.	On 3 February 2005 a GMC case examiner decided to refer Mr Gerstenkorn's case for performance assessment (a process by which the GMC may choose to investigate and assess concerns which had been raised relating to aspects of a doctor's performance).  
5.	Following consideration of further information received from the BCH Trust, a case examiner concluded that a number of issues required further scrutiny.  In accordance with Rule 7 of the General Medical Council (Fitness to Practise) Rules 2004 ("the Rules"), on 20 October 2005 Mr Gerstenkorn was sent a letter setting out draft allegations of misconduct and deficient professional performance.  Following receipt of the response to the allegations (26 October and 9 November 2005), the case examiners decided to refer the allegations to a Panel under Rule 8(2)(d) of the Rules.  Mr Gerstenkorn was notified of this decision by letter dated 21 December 2005.  
6.	Preparation for the hearing of the allegations was not completed until December 2006.  In the meantime, on 1 June 2006 Mr Gerstenkorn requested that the case be cancelled on the basis, amongst others, that there was a lack of evidence to support the allegations, and there had been significant delays.  This request was declined.  The request for cancellation was repeated on 20 October 2006, but again declined.  
7.	On 12 December 2006 the GMC issued a Notice of Hearing informing Mr Gerstenkorn that a hearing would commence on 12 February 2007 into allegations concerning 21 patients and a number of other matters.  On 3 January 2007 the solicitors then instructed by Mr Gerstenkorn requested an adjournment of the hearing, to which the GMC acceded on the ground that the solicitors had only recently been re‑instructed.  On 21 February 2007 new hearing dates of 1 October 2007 to 21 December 2007 were agreed.  On 26 February 2007 Mr Gerstenkorn again applied for cancellation of the case, which application was refused on 19 March 2007.  
8.	In the meantime, on 12 March 2007 the Interim Orders Panel of the GMC ("the IOP") imposed conditions on his registration.  This included a requirement that he confine his medical practice to National Health Service Hospital posts below the grade of Consultant, where his work would be supervised by a named consultant.  
9.	On 20 August 2007 a further Notice of Hearing was sent to Mr Gerstenkorn.  This contained allegations concerning 21 patients, a number of which had been revised from the previous Notice of Hearing, as well as other general matters including poor team work, poor general practice and a lack of respect for colleagues and patients.  On 4 September 2007 Mr Gerstenkorn applied for an adjournment of the hearing, due to commence on 1 October 2007.  The request was allowed on the grounds that the GMC had made significant changes to the allegations and there was not sufficient time for the defence to meet the amended allegations in the time available.  Mr Gerstenkorn subsequently wrote on 2, 4 and 8 October 2007 requesting for a fourth time that the case be cancelled on the grounds, amongst others, that new evidence from his experts, Dr Thomusch and Dr Pisarski, showed that his fitness to practise was not impaired, and there had been delays and errors in the GMC's handling of this case.  This request also was refused.  
10.	On 23 October 2007 the GMC informed Mr Gerstenkorn that his experts' report was not accepted and that the GMC required their attendance at the hearing.  On 6 November 2007 the GMC wrote to Mr Gerstenkorn confirming the hearing date of 4 February 2008, and that the allegations which would be considered were those set out in the Notice of Hearing dated 20 August 2007.  
11.	On 9 November 2007 Mr Gerstenkorn made a fifth application for a cancellation of the case, and on 13 November 2007 applied for the hearing of 4 February 2008 to be adjourned.  Both applications were refused on 23 November 2007.  A sixth and seventh application for cancellation were made on 11 and 23 November 2007 respectively, both of which were refused on 4 January 2008.  
12.	On 23 January 2008 Mr Gerstenkorn's solicitors confirmed that they and counsel would be attending the first week of the hearing.  On 31 January 2008 they confirmed that they would not now be so attending.  
13.	The hearing before the Panel commenced on 5 February 2008 (4 February 2008 being a non‑sitting day), and the Panel sat for 39 days during the period to 9 May 2008.  The first ten days were taken up with an application by Mr Gerstenkorn to stay the proceedings on the grounds of abuse of process.  He submitted that there had been an abuse of procedures by the GMC and BCH Trust, excessive delays in hearing the matter, bad faith on the part of the GMC and BCH Trust, and an infringement of his rights under Articles 6 and 8 of the European Convention on Human Rights.  The Panel determined that there were no grounds to stay the proceedings.  I shall revert to this matter later in my judgment.
14.	Following an application by the GMC to withdraw and amend some of the charges, the Panel Secretary then read out the allegations against Mr Gerstenkorn, a number of which were admitted by him.  The GMC proceeded to open its case, and the Panel heard evidence from 28 witnesses of fact, including six patients the subject of the allegations, and, over four days, the GMC's expert, Mr Paul Lear.  Mr Gerstenkorn cross‑examined each of these witnesses extensively.  
15.	Following the close of its case on day 36, the GMC made a further application to amend six of the allegations, including by way of the withdrawal of two of them.  An annotated version of the Notice of Hearing setting out the allegations, including those amended and withdrawn by the GMC, and those admitted by the appellant, which formed the basis of the panel's determination, was before this court.  
16.	The following day (day 37) of the proceedings, Mr Gerstenkorn sought a stay of proceedings on the basis that he could not have a fair trial in circumstances where only three days then remained of the original fixed hearing dates for him to present his defence, and the earliest it would be possible for the Panel to reconvene and be quorate for the amount of time that the remainder of the hearing would require would be January 2009.  The cost of either bringing witnesses and himself from Germany and Northern Ireland, or arranging for their evidence to be given by videolink, was a stumbling block.  
17.	The Panel refused his application.  It noted that the GMC had undertaken that if it proved to be necessary, it would fund the cost of a videolink both with Germany and in Northern Ireland, subject to Mr Gerstenkorn satisfying the GMC that he would be unable to attend the hearing or to fund the videolinks himself.  It also noted that, earlier in the proceedings, Mr Gerstenkorn had stated that he required an adjournment in order to interview and secure his witnesses, and he would now have the opportunity to do so.  It took into account his submission that whilst taking part in the GMC proceedings he was unable to work and was reliant upon the receipt of benefits, but the Panel considered it to be an inevitable fact that every practitioner brought before a Fitness to Practise Panel was inconvenienced, and considered this to be part of the price of belonging to the medical profession.  
18.	The GMC corresponded with Mr Gerstenkorn during the course of the summer of 2008 concerning the funding of the videolink and arrangements for the resumed hearing in January 2009.  By letter to the GMC's solicitors of 22 November 2008 Mr Gerstenkorn again applied for the case against him to be closed on the ground that the income from his current employment in Germany did not allow him to fund the continuation of the hearing, which he estimated would require in the region of 35 to 40 days, and that he would not be able to take any time off or annual leave until May 2009.  He stated that a further postponement of the scheduled hearing would be no solution to the problem.  
19.	On 25 November 2008 the GMC notified the appellant that there was no procedure by which his case could be cancelled as the Fitness to Practise hearing had opened, but that his letter would be forwarded to the Adjudication Manager to pass to the Panel in order that it could consider his request when the hearing resumed on 5 January 2009.  
20.	On 6 December 2008 Mr Gerstenkorn wrote to the Adjudication Manager stating he had accepted a new job in Germany, and under German law he was unable to take any time off before the completion of his probationary period on 30 April 2009.  He applied for an adjournment until after that date.  He also stated that a fair trial was no longer possible in all the circumstances.  He provided further submissions to that effect on 27 December 2008 and 4 January 2009.  
21.	All his submissions on the issue were put before the Panel on 5 January 2009.  The following day (day 41) of the proceedings the Panel determined that his application to stay the proceedings should be dismissed, finding firstly that the GMC had not reneged on its offer regarding videolink proceedings, but that Mr Gerstenkorn had failed to comply with the conditions of the offer; secondly, the fact that he had succeeded in his claim for unfair dismissal against BCH Trust was irrelevant; and thirdly, his Convention rights were not infringed by their continuance.
22.	It proceeded to consider his alternative application for an adjournment of the hearing.  Before reaching any determination on this issue, it requested that the GMC contact Mr Gerstenkorn seeking his permission for the GMC to contact his employer to establish that he was employed by them in the capacity indicated; that German law or the provisions of his contract prohibited him from taking leave prior to 30 April 2009; that his employer would not permit him to take leave prior to that date; and whether the employer would permit him to take the period of annual leave that it was anticipated would be required to complete the hearing (that is, 37 days).  Mr Gerstenkorn's employer subsequently confirmed that his probationary period ran until the date stated, and that under German Employment Law he was not permitted to take holiday during that period.  Thereafter, his annual leave entitlement was stated to be 30 days, although it was subsequently confirmed that his employer would be prepared to allow him to take a block of annual leave of 37 days following his probationary period to attend the Panel. 
23.	The Panel reached its determination on this part of Mr Gerstenkorn's application on 8 January 2009 (day 43 of the hearing).  I shall again revert to this matter later in the judgment.
24.	The Panel then proceeded to adjourn the hearing to Monday 12 January 2009 in order that Mr Gerstenkorn might have an opportunity to consider the Panel's determination and make any written submissions he might wish and provide copies of his experts' reports.  In fact, he chose to attend the hearing on 12 January 2009, and on the following two days in person.  He asked the Panel to reconsider the issue of whether there had been a breach of Article 6 when considering whether to adjourn or stay the proceedings.  
25.	The Panel concluded that he had submitted no new grounds for either of his applications, and accordingly determined that the case should proceed.  It did so first by hearing evidence from Mr Gerstenkorn on the topic of Thymogobulin/ATG relating to allegation 108 regarding patient W, upon which he was cross‑examined.  It then heard evidence in chief from him on the remaining issues, counsel for the GMC having agreed that, in the time available, the priority was to hear from the defendant rather than for him to be cross‑examined.  
26.	Mr Gerstenkorn then returned to Germany where he received copies of the daily transcripts by e‑mail.  On 15 January 2009 he provided some further submissions and corrections to the transcript, but did not mention the issue of the attendance of his experts.  At the hearing the following day (16 January 2009) the Panel indicated that if one of his experts were able to attend, say, on the following Monday, it would be ready to hear from that person, but that there would come a time when it must continue with the closing of the first part of the case (ie determining the factual allegations).  It indicated that it needed to hear from Mr Gerstenkorn ideally later that day.  He responded by e‑mail that afternoon indicating that Professor Thomusch was completely occupied until the end of January, and that Dr Pisarski was currently not available.  
27.	Early on the morning of 19 January 2009 Mr Gerstenkorn e‑mailed further, stating that Professor Thomusch would be available from 30 January 2009 until 12 February 2009, and suggested that this would give the Panel some time to review his evidence which he had given the previous week.  The Panel considered that indication, which was effectively a request for a further adjournment until 30 January 2009, upon sitting that morning.  The Panel decided that it would not allow an adjournment until 30 January 2009 for Professor Thomusch to attend, but would allow a week's adjournment to Monday 26 January 2009.  It did so on condition that Mr Gerstenkorn confirm in writing that Professor Thomusch would be available to give evidence at 9.30 on that date by 9.30am the following day, 20 January 2009.  
28.	On the evening of 19 January 2009 Mr Gerstenkorn e‑mailed the Panel confirming that he would investigate whether there was a possibility of his persuading Professor Thomusch to be available before 30 January 2009, but that it would be impossible for him to answer that request by the following morning.  
29.	At the outset of the hearing the following morning the Panel noted that Mr Gerstenkorn appeared not to have fully appreciated the effect of its determination the previous day concerning the time by which he had to indicate whether the professor would be available, and that the opportunity for that had now passed.  Accordingly, it invited the GMC to make its closing speech, which it did by handing up written submissions which were then read into the transcript.  A copy of the submissions was provided to Mr Gerstenkorn on the same day in order for him to respond to them.  Late that evening he e‑mailed asking for additional time until 26 January 2009 to provide his comments on the submissions.  The Panel acceded to that request the following day (21 January 2009).  In fact, rather than submit written submissions as he had proposed, Mr Gerstenkorn attended the hearing on 26, 27 and 28 January 2009 and made extensive oral closing submissions.  
30.	The following day, 29 January 2009 (day 55 of the hearing), the legal assessor gave his advice to the Panel, which advice he had previously circulated (subject to some minor amendments) both to Mr Gerstenkorn and counsel for the GMC.  
31.	The Panel proceeded to deliberate in camera for seven working days before handing down its determination on the facts.  During the course of the Panel's deliberations the appellant submitted a series of applications to the Panel seeking either a stay or adjournment of the proceedings.  These applications were considered by the Panel on 9 February 2009.  It determined that there were no grounds upon which to grant a stay or an adjournment.  Accordingly it invited the GMC to address it on the issue of impairment.  These were e‑mailed to Mr Gerstenkorn, and he responded in writing the following day when the GMC's submissions were also read into the transcript.  
32.	Following further deliberation on 11 February 2009 the Panel determined that Mr Gerstenkorn's fitness to practise was impaired by reason of his misconduct and deficient professional performance.  The same process was followed in respect of the issue of sanction, whereby the GMC's submissions were e‑mailed to the appellant and he was given an opportunity to respond, which he did on 11 February 2009.  Both sets of submissions were duly read into the transcript and considered by the Panel.  
33.	On 12 February 2009 (day 66 of the hearing) the Panel determined to erase Mr Gerstenkorn's name from the medical register, being satisfied that erasure was a proportionate sanction in this case.  Furthermore, it determined that, in view of the serious nature of its findings, in order to protect the public and the public interest his registration should be suspended with immediate effect.
Legal Framework
34.	I turn now to the legal framework.  The powers of a Panel are contained in section 35D(2) of the Act, which provides:  
"(2) Where the Panel find that the person's fitness to practise is impaired they may, if they think fit‑ 
 (a) except in a health case, direct that the person's name shall be erased from the register;
 (b) direct that his registration in the register shall be suspended (that is to say, shall not have effect) during such period not exceeding twelve months as may be specified in the direction; or 
 (c) direct that his registration shall be conditional on his compliance, during such period not exceeding three years as may be specified in the direction, with such requirements so specified as the Panel think fit to impose for the protection of members of the public or in his interests."
35.	Section 35C(2) of the Act provides that a person's fitness to practise shall be regarded as impaired for the purposes of the Act by reason of, amongst other matters, misconduct and deficient professional performance. 
36.	The procedure to be adopted by an FTP Panel in a substantive hearing is set out in the General Medical Council (Fitness to Practise) Rules Order of Council 2004 ("the FTP Rules").  Rule 17 provides for a hearing to take place in three stages: firstly, the fact‑finding stage; secondly, the impairment stage; and thirdly, the sanction stage.  
37.	The task of the Panel at each stage is separate and distinct: see Cohen v General Medical Council [2008] EWHC 581 Admin at paragraph 16.  At the first stage (the fact‑finding stage) the task of the Panel is to consider the factual allegations set out in the heads of charge and decide on the evidence whether they are proved.  The task of the Panel at the second stage (the impairment stage) is to consider whether, in the light of any facts found proved and any other relevant factors, the practitioner's fitness to practise is impaired.  The task of the Panel at the third stage (the sanction stage) is to determine what, if any, sanction to impose on the practitioner if the Panel has found that the practitioner's fitness to practise is impaired: see Cohen at paragraph 16‑18 and 47.  
38.	The High Court's powers on an appeal by a doctor against a decision of an FTP Panel are set out in section 40(7) of the Act, which provides that: 
"(7) On an appeal under this section from a Fitness to Practise Panel, the court may ‑  
 (a) dismiss the appeal;
 (b) allow the appeal and quash the direction or variation appealed against;
 (c) substitute for the direction or variation appealed against any other direction or variation which could have been given or made by a Fitness to Practise Panel; or 
 (d) remit the case to the Registrar for him to refer it to a Fitness to Practise Panel to dispose of the case in accordance with the directions of the court ..."  
39.	The court should only allow the appeal where it is satisfied that the decision of the FTP Panel was (a) wrong, or (b) unjust because of a serious procedural or other irregularity in the proceedings of the lower court (see CPR 52.11(3)). 
40.	For this appeal, Mr Gerstenkorn served three skeleton arguments: first, a 31‑page document entitled "Skeleton arguments"; second, a partial skeleton argument for Mr Gerstenkorn drafted by Mr Adrian Jack of counsel dated 12 March 2009; and third, a further two‑page document entitled "Skeleton arguments Mr Clemens Gerstenkorn v the GMC".  All three documents were served on the GMC on 10 September 2009.  In addition, Mr Gerstenkorn's appeal bundle contains a witness statement and narrative introductions to certain documents.  These documents contain wide‑ranging challenges to the Panel's decision, including abuse of process, procedural irregularity and material errors of fact and of assessment.  Many of these points were not mentioned or pursued at the oral hearing.  
41.	Mr Gerstenkorn complained during the hearing that he did not have adequate time to explore all the alleged deficiencies in the Panel's decision.  However, in opening he addressed me for one and a half days, and then took practically the whole afternoon of the third day in reply.  In my view, he had ample time to make his points.  Unfortunately, he did not use that time efficiently, but was often discursive and repetitive in his presentation.  
42.	At the core of Mr Gerstenkorn's case was the submission that, in respect of three patients in particular (Patients D, X and S), the Panel made erroneous findings of fact.  A considerable part of his oral argument was devoted to this submission.  In this context it is important to bear in mind that serious allegations of professional failure were made and found proven in respect of a total of 21 patients, and that in this appeal Mr Gerstenkorn did not seek, with the necessary precision or particularity, to challenge the Panel's specific findings of fact insofar as they related to patients other than those that I have just mentioned.  However, the Panel's findings in respect of Patients D, X and S were specially serious.  At the sanction stage the Panel itself identified the proven misconduct and deficient performance in relation to Patients S and X as particularly serious (see point 3 of the part of the decision dealing with sanction), and even more importantly the Panel concluded that, at least in relation to Patients S and X, Mr Gerstenkorn's actions were fundamentally incompatible with his continuing to be a registered doctor (see point 13 of the same).  
43.	If therefore the Panel did err in its findings in respect of these patients, that would plainly raise a serious question about the appropriateness of the sanction of erasure imposed in this case.  For this reason, and also because examination of the specific findings would illustrate certain further significant points, I turn first to this core element of the appeal.  
44.	At the outset on this aspect, I note the proper approach that this court should take on an appeal under section 40 against findings of serious professional misconduct.  In GMC v Meadow [2006] EWCA Civ 1390, Auld LJ gave guidance on the proper approach.  Auld LJ, with whom the other members of the Court of Appeal agreed, upheld Collins J's simple expression at first instance of the test, namely that a court will not interfere with a decision of the Fitness to Practise Panel unless persuaded that the decision in question was clearly wrong, save that he doubted whether the adverbial emphasis of "clearly" added anything logically or legally to an appellate court's characterisation of the decision below as wrong.  
45.	Auld LJ concluded: 
"197. On an appeal from a determination by the GMC, acting formerly and in this case through the FPP, or now under the new statutory regime, whatever label is given to the section 40 test, it is plain from the authorities that the Court must have in mind and give such weight as is appropriate in the circumstances to the following factors:
i) The body from whom the appeal lies is a specialist tribunal whose understanding of what the medical profession expects of its members in matters of medical practice deserve respect;
ii) The tribunal had the benefit, which the Court normally does not, of hearing and seeing the witnesses on both sides;
iii) The questions of primary and secondary fact and the over‑all value judgement to be made by tribunal, especially the last, are akin to jury questions to which there may reasonably be different answers." (emphasis as in original)
46.	The approach to the second of those factors reflected that set out in Gupta v General Medical Council [2002] 1 WLR 1691:  
"... the obvious fact [is] that the appeals are conducted on the basis of the transcript of the hearing and that, unless exceptionally, witnesses are not recalled. In this respect these appeals are similar to many other appeals in both civil and criminal cases from a judge, jury or other body who has seen and heard the witnesses. In all such cases the appeal court readily acknowledges that the first instance body enjoys an advantage which the appeal court does not have, precisely because that body is in a better position to judge the credibility and reliability of the evidence given by the witnesses. In some appeals that advantage may not be significant since the witnesses' credibility and reliability are not in issue. But in many cases the advantage is very significant and the appeal court recognises that it should accordingly be slow to interfere with the decisions on matters of fact taken by the first instance body. This reluctance to interfere is not due to any lack of jurisdiction to do so. Rather, in exercising its full jurisdiction, the appeal court acknowledges that, if the first instance body has observed the witnesses and weighed their evidence, its decision on such matters is more likely to be correct than any decision of a court which cannot deploy those factors when assessing the position. In considering appeals on matters of fact from the various professional conduct committees, the Board must inevitably follow the same general approach." 
47.	The composition of Fitness to Practise Panels is established by the General Medical Council (Constitution of Panels and Investigation Committee) Rules Order of Council 2004 ("the Constitution Rules").  Since 2004 more lay members have sat on Fitness to Practise Panels.  However, the guidance in GMC v Meadow was given after this change in practice.  There is no suggestion in that case that the approach of the High Court should be modulated to take account of the more extensive participation of lay members in Fitness to Practise Panels.  This was recognised by Hodge J in Dzikowski v GMC [2006] EWHC 2468 (Admin), where he said that both lay and medical members of Fitness to Practise Panels are likely to be experienced to deal with medical issues which arise in determining the fitness to practise of practitioners, and that no particular medical specialisation is required (see paragraph 25). 
48.	In Cheatle v GMC [2009] EWHC 645 (Admin), Cranston J at paragraph 15 stated that he could not be completely blind to the current composition of Fitness to Practise Panels.  There may perhaps be cases where the composition of the Panel might be relevant, but, in my view, nothing turns in this case upon the precise Panel composition.
49.	I consider first the findings in respect of Patient X: a man of 79 with a long history of high blood pressure who suffered from advanced kidney disease and who had suffered a myocardial infarct (heart attack) earlier in the relevant year.  The GMC allegation is found under Case 4 ‑ Patient X at paragraphs 27 to 28:  
"27. On 2 October 2003, you 
a. operated on a patient, X, for exploration of a recently constructed fistula without anaesthetic, 
b. declined the repeated offer of Lignocaine by theatre staff,
c. continued the procedure in the knowledge that Patient X was in pain;
28. Your actions as described in paragraph 27 above were
a. inappropriate, 
b. unprofessional, 
c. not in the best interests of your patient." 
50.	The specific findings are also under Case 4 ‑ Patient X, allegations 27a, 27b and 27c:  
"Allegation 27a has been found proved.
The Panel noted that the operation for exploration of a recently constructed fistula was evidenced by the operation note. The Panel also noted that this operation was undertaken as an emergency as Patient X had been admitted to the accident and emergency department of Belfast City Hospital on the morning of 2 October 2003 with a bleeding fistula.
Nurse Sterling told the Panel that she organised this emergency operation and found an anaesthetist, who Mr Gerstenkorn sent away. She stated:
 “Mr Gerstenkorn asked me, “I did not order an anaesthetist.  Who ordered him?”  I said that I had brought the anaesthetist around because I assumed that he would be required.  Mr Gerstenkorn said to the anaesthetist “I do not need your services; you can go”.” 
Mr Gerstenkorn told the Panel that he never heard Nurse Sterling offer the services of an anaesthetist to him.
Nurse Connor was the scrub nurse on duty during the operation. She told the Panel that Mr Gerstenkorn was offered the use of Lignocaine, which he declined:
 “I recall that I offered the local anaesthetic several times to him ... He just shook his head and continued to work.” 
Mr Gerstenkorn told the Panel that at 7.30 am the patient had been administered morphine while in A&E. He also stated that the patient was given paracetamol prior to the operation to ease his pain. There was evidence to support these statements but the Panel rejected the explanation that these were anaesthetic drugs rather than analgesics. 
The Panel accepted the evidence of Nurses Sterling and Connor, that local anaesthetic was not given. It found both witnesses to be clear and reliable. 
Allegation 27b has been found proved.
The Panel noted the evidence of Nurses Connor, Sterling and O'Dowd, that repeated offers of the use of Lignocaine were made to Mr Gerstenkorn throughout the operation on Patient X.
In relation to this allegation, Mr Gerstenkorn told the Panel:
 “I did not see an opportunity to efficiently inject local anaesthetics at the period of time when this patient was actively bleeding.” 
The Panel considered that the evidence of Nurses Connor, Sterling and O'Dowd, who wrote an incident report in relation to this matter, was clear and reliable. It noted that Mr Gerstenkorn did not deny that he had refused the use of Lignocaine. 
Allegation 27c has been found proved.
The Panel noted the evidence of Nurse Sterling. In respect of Patient X, she told the Panel:
 “He was very frightened, very anxious.  He was in pain.” 
In answer to a question as to whether Mr Gerstenkorn, while concentrating on performing the operation, would have been aware of Patient X’s pain, Nurse Sterling stated:
 “Even with all his concentration, the man was moving around very substantially and Mr Gerstenkorn actually did shout at the patient to tell him to stop moving around.” 
In his submissions before the Panel, Mr Gerstenkorn acknowledged that the patient was agitated, but not in pain:
 “I think there was a longer period when the patient was supposed to be on the table and settling down and could not settle down, so he was agitated at the time.  He was moving his arm at the time.” 
The Panel is in no doubt that Mr Gerstenkorn continued the operation in the knowledge that Patient X was in pain. 
In respect of allegations 27a, b and c, allegations 28a, b and c have been found proved."
The main attack on these findings was that the Panel was wrong to find that Patient X received no anaesthetic, general or local, for the surgical procedure in question.  The evidence, it is contended, showed that at 7.35am, that is about two hours or so before the relevant procedure began, Patient X was administered with 5 milligrams of cyclomorph (morphine), morphine is an anaesthetic or an effective substitute for an anaesthetic, and that the half life of morphine is such that it would have continued to have effect at the time the relevant procedure took place.  
In support of the contention that morphine is an anaesthetic Mr Gerstenkorn produced for the hearing general materials extracted from the internet.  The generality of the materials can be illustrated from the first document, an article of 2000, under the heading "Anaesthesia and chronic renal failure", where the following appears: 
"Opioids Morphine is metabolised in the liver to morphine‑6‑glucuronide which has about half the sedative effect of morphine with a markedly prolonged half life. Pethidine is partially metabolised to norpethidine which is less analgesic and has excitatory and convulsant properties. Both of these metabolites may accumulate in renal failure after repeated doses or with infusions. Standard intraoperative use will not usually cause problems. When available, morphine is preferable to pethidine."
51.	Mr Gerstenkorn offered no explanation why these materials, if they were relevant, were not placed before the Panel in the course of its proceedings.  In any event, for the reasons that will emerge, I do not find them relevant to the real issue in this context.  
52.	The expert witness for the GMC was Mr Paul Lear MS FRCS.  He is a Consultant Transplant and Vascular Surgeon, with a special interest in renal transplantation and access surgery for dialysis.  He has been a consultant surgeon since 1988, and has been continuously involved in renal transplant surgery since 1983, having performed over 800 kidney transplants.  He has also performed over 3,000 vascular access procedures.  Since 2000 he has been Clinical Director of Surgery in the North Bristol NHS Trust, and so has held general responsibility for the quality of care given by the 35 consultants in his Directorate.
It his report Mr Lear assessed Mr Gerstenkorn's treatment of Patient X as follows: 
"Re‑operation without any anaesthetic is completely unacceptable practice.  These emergencies are best undertaken with a general anaesthetic.  The patient had been in the hospital for more than five hours before the operation and general anaesthesia would have been safe.  
Even if the procedure was undertaken with a tourniquet in place above the operating site this would not generate an anaesthetic field for surgery.  The placement of a tourniquet would prevent remote (cardiac) complications from administration of local anaesthetic which would have been effective.  Lignocaine would remain at the injection site and become 'tissue fixed' prior to the release of the tourniquet.  This form of local/regional   anaesthesia is called Bier's Block.  
By refusing to administer local anaesthetic, the standard of care given to Patient [X] by Mr Gerstenkorn falls seriously below the standard expected of any surgical practitioner." 
53.	Mr Gerstenkorn cross‑examined Mr Lear extensively at the Panel hearing, and did put to him the proposition that morphine was an anesthetic.  Mr Gerstenkorn pointed out that Patient X had had IV medication, including cyclomorph, and asked, "Would that be an appropriate painkiller at the time?"  Mr Lear replied, "I think it is a very good way of allaying anxiety." (transcript, day 33, page 31, letter D). 
54.	Later Mr Gerstenkorn, referring to the fact that Patient X had received a gram of paracetamol, asked: "How much effect would a gram of paracetamol have in regards of pain relief?"  Mr Lear answered: "It is a very good analgesic, but it is not an anaesthetic".  To the next question he stated unequivocally: "This patient needed an anaesthetic, not analgesic".  
55.	On this evidence the Panel was clearly correct to find that Mr Gerstenkorn operated on Patient X without anaesthetic.  In my judgment, Mr Gerstenkorn simply did not engage, either before the Panel or in this court, with the real issue in this context.  
56.	Mr Lear had been firm in his report and during his cross‑examination that Mr Gerstenkorn had failed to ensure that this 79 year‑old patient did not suffer during the course of what would otherwise be likely to be an extremely painful surgical procedure.  The fact that Patient X had received morphine or paracetamol about two hours before the procedure was irrelevant to the allegation, because the prime purpose of administering morphine or paracetamol is to relieve pain, or, more likely here, anxiety.  Its administration to this patient in the relevant circumstances was wholly inadequate and would have been known by any competent surgeon to be wholly inadequate to ensure that Patient X did not suffer during the course of the relevant surgical procedure.  
57.	Instead of engaging with the real issue Mr Gerstenkorn has persisted in this court with the argument that both in linguistic derivation and by reference to general materials, which I have mentioned, morphine can properly be described as an anaesthetic.  He insisted before me that he had done nothing wrong in the case of Patient X, implying that he might well take the same approach in the same or similar circumstances, and he showed no understanding of, or regret for, what Patient X had suffered during the relevant procedure.  This is of some general relevance, for the Panel found that Mr Gerstenkorn was obstinate and intransigent, and it seemed to me that these characteristics were all too evident in the manner in which he has maintained before me his defence against the allegations respecting Patient X.  
58.	A second argument advanced by Mr Gerstenkorn was that, so far as a local anaesthetic was concerned, it had been impracticable to give such an anaesthetic in the relevant circumstances.  This matter was also explored at the hearing.  In examination in chief Mr Lear was asked: 
"What about using a local anaesthetic?  We have heard from the nurses that they had a syringe with 20 milligrams of Lignocaine available.  It was offered to Mr Gerstenkorn.  Could that have been used?"  
Mr Lear replied: 
"Yes, of course it could have been used.  Sometimes it might be difficult to access where you want to inject it because the patient has got a great big wad dressing on it, but in reality it is entirely possible to inject a local anaesthetic".  
59.	Mr Gerstenkorn in cross‑examination pressed Mr Lear on this point, asking: 
"Where would you inject the local anaesthetics?  Where would the local anaesthetic be if it is actively bleeding?"  
60.	Mr Lear replied: 
"Logically, you know the bleeding is coming from the arterio‑venous fistula.  Therefore, if you inject into the subcutaneous tissues around the site of the original incision, you know that should you have very easy ‑ considering the operation has been done in the previous 24 hours ‑ you should have very easy access to the operative site." (Transcript day 33, page 36, letter F to 37, letter A)
61.	Even if a general anaesthetic could not have been given ‑‑ which on the evidence was not the case, because an anaesthetist had initially been present but then turned away by Mr Gerstenkorn ‑‑ the Panel plainly were entitled to find that local anaesthetic was a reasonably practicable alternative.  
62.	The third line of attack on the findings was that the evidence was insufficient to show that Patient X was in pain during the procedure.  Mr Lear had said that he would be very surprised if a patient undergoing this procedure had not felt pain (transcript day 33, page 41, letter A).  The Panel in its findings specifically referred to the evidence of Nurse Sterling, which was corroborated by Nurse Connor and Nurse O'Dowd.  Nurse Connor said of Patient X's condition during the surgery: 
"Sore is an understatement.  The patient was in agony.  He was inconsolable.  He was writhing.  He was crying.  He was calling out.  I mean, he was in agony.  He was very, very sore."  (Transcript day 18, page 17, at letter E).  
63.	Nurse O'Dowd stated: 
"He was shouting, you know, in pain.  I do not know what words he used but he was like, 'Aaargh'.  He was moving about.  He was making noise.  He was shouting.  It was really obvious he was in pain."  
64.	Asked whether she appreciated that no local anaesthetic had been given, the following exchange took place:  
"Yes, and then we said ‑ I think I said and Leah said, 'This patient is in pain, obviously.  We need local anaesthetic."  (Day 18, page 41, letters D to H). 
65.	She went on to say that Mr Gerstenkorn refused the offer of local anaesthetic, but he gave no explanation to the nursing team or to the patient why he so refused.  
66.	At a very late stage in the proceedings Mr Gerstenkorn sought to provide the Panel with an alternative explanation for Patient X's behaviour during the procedure.  On day 45, when he was giving his own evidence, but of course well after his cross‑examination of the GMC witnesses, Mr Gerstenkorn put it to the Panel that the effect of the morphine on Patient X would be likely to unsettle him, and that such unsettling might be mistaken for symptoms of pain.  
67.	Mr Gerstenkorn also relied upon the fact that the records showed that in the recovering unit Patient X was not in pain.  This of course is simply irrelevant to the issue of how much pain, if any, he suffered earlier during the surgical procedure.  
68.	I do not find it surprising that the Panel implicitly rejected this alternative hypothesis, both in the light of the clear and unequivocal evidence of the GMC witnesses, and also of the manner in which Mr Gerstenkorn had brought this putative alternative before the Panel.  Again, Mr Gerstenkorn's refusal before the Panel and in this court to accept that Patient X did suffer during the course of this unanaesthetised procedure tends to support the Panel's findings of obstinacy, intransigence and insensitivity to the patient's needs.  
69.	I now turn to Patient S.  The two principal elements of the findings in respect of Patient S were first that patient S had not properly consented to an en‑bloc kidney transplant from a donor of ten months, and that, particularly in the light of advice from a consultant colleague and the agreement by the Kidney Advisory Group, it was in any event inappropriate, unprofessional and not in the best interests of the patient to carry out such a transplant.  
70.	Mr Gerstenkorn's answer to this finding was that paediatric en‑bloc kidney transplants are "within the acceptable range of medical practice", and, therefore, no special form of consent was necessary in the case of Patient S, and it was wholly appropriate to perform this kind of procedure on her.  Mr Gerstenkorn relied upon the report of his experts who stated:  
"Paediatric en‑bloc transplants are well accepted for adult transplantation.  If they are successful in the first six months their long term function can be excellent.  They do have a higher risk of complications, particularly in the early period after transplantations, and they do require more complex surgery than the average transplant."  
71.	However, this evidence is entirely inconsistent with that of the GMC expert, Mr Lear.  He pointed out that the outcome of en‑bloc transplants is unpredictable and requires a refined immunosuppresive regimen.  There is insufficient experience of en‑bloc transplants from such young donors to reassure the patient that this is a good clinical option, and transplants from small paediatric donors are at high risk of technical loss (vascular thrombosis).  Only seven paediatric en‑bloc transplants have been performed from donors less than a year old in the United Kingdom in the 11‑year period from 1996 to 2007.  The outcome of such transplants is poor compared to cadavaric transplants from donors of over five and under 70 years of age (see Mr Lear's report, page 42, appendix 5).  
72.	In his supplementary report of 7 December 2007, Mr Lear emphasised that blanket data for donors in the age group of 1 year to 5 years was not appropriate, and that it was necessary to break down the data, as did the National Statistics, to show the particularly poor outcomes from very young infant donors.  None of this was explained to Patient S.  I have carefully read her evidence (transcript day 13 beginning at page 7, letter G).  It is clear and unequivocal, and it is not surprising that the Panel accepted her account.  For example, she was asked whether Mr Gerstenkorn gave her any impression in response to her question about Mr Gerstenkorn's experience.  Patient S answered: 
"Yes, he gave the impression that he was very experienced in this field, and I do recall he mentioned that he had previous experience in Newcastle and London of these operations,"  
clarifying that the operations to which she referred were paediatric transplantations (transcript day 13, page 8, letters A to B).  
73.	In any event Mr Gerstenkorn's defence in respect of Patient S also missed the essential point: that a paediatric en‑bloc transplant was not suitable for her.  As Mr Lear pointed out, she was not yet on dialysis and should have waited for a more suitable donor.  The donor HLA mismatch (1.1.1) was not good, and in younger recipients (she was a 24 year‑old solicitor), it is better to wait for a beneficial match (1.1.0 mismatch or better).  She had been waiting only a short time on the transplant list and could wait for a living donor transplant which has the best outcome according to annual national independent audit.  Again, none of these factors which made paediatric en‑bloc transplantation inappropriate for her was explained to Patient S.  
74.	Mr Gerstenkorn sought to make a point about Patient S's blood group, but this was completely answered by Mr Lear (see transcript day 33, page 76F and page 82 letters A to C).  
75.	As the Panel made clear, the misconduct in respect of Patient S was specially blameworthy because Mr Gerstenkorn's colleague, Mr Connolly, an experienced consultant surgeon, had advised Mr Gerstenkorn against carrying out the paediatric en‑bloc transportation.  Asked what advice he gave Mr Gerstenkorn, Mr Connolly replied:  
"I said at the time I would not do it.  As far as I am concerned I think there is little evidence that the outcomes are as good as a standard sourced cadavaric kidney from an older donor."  
76.	Mr Gerstenkorn remains in complete denial about his serious mistreatment of Patient S.  His position was and continues to be that he did nothing wrong.  Others were to blame, such as Mr Connolly who had to remove the first infarcted kidney, and Dr Nelson, who initiated an ACB inhibitor for blood pressure treatment.  Although Mr Gerstenkorn had professed to Patient S that he was expert in paediatric implantation, he maintained that he was in no way at fault in not knowing about the agreement concerning such implantations of the Kidney Advisory Group.  If Mr Connolly was concerned, Mr Gerstenkorn contends, he should have stopped Mr Gerstenkorn from performing a paediatric en‑bloc transplantation on Patient S, notwithstanding Mr Connolly's evidence to the Panel: 
"... it is not my position to ban Mr Gerstenkorn from operating.  He is a consultant surgeon.  He is responsible for his own actions.  All I could do was give advice.  That is all." (transcript day 14, page 35, letter C)  
77.	I find no error in the Panel's findings concerning Mr Gerstenkorn's misconduct in respect of Patient S.  
78.	I can take patient D more shortly.  The allegations appear under Case 2 ‑ Patient D, at paragraphs 9 to 17, and the findings are found similarly under Case 2 ‑ Patient D.  The nub of the findings was that Patient D was very seriously ill, and Mr Gerstenkorn intended to discontinue the administration of one of the antibiotics, gentamicin, and to leave Patient D on monotherapy for sepsis.  The reason why Mr Gerstenkorn intended to discontinue gentamicin was that he did not believe that Patient D had neutropaenic sepsis.  The Panel concluded that there was clear evidence from Patient D's records that she was suffering from sepsis, and Dr Courtney firmly told the Panel that removing the gentamicin would further reduce the patient's already low chances of survival.  She said that Mr Gerstenkorn did not want Patient D to have gentamicin for the sake of the transplanted kidney, and did not want the recovery of the transplanted kidney to be potentially compromised.  Both Dr Courtney and Mr Lear rightly considered that the life of the patient had to come before the fate of the transplanted kidney (see transcript day 20, pages 21 to 22, and transcript day 33, page 12, letter G).  
79.	At the hearing Mr Gerstenkorn submitted further documents which he had not placed before the Panel.  He offered no explanation why the documents were not produced at the hearing.  In any event the documents were again of a very general nature and did not address the key issue, namely whether the intended withdrawal of gentamicin was wholly inappropriate for this patient given that Patient D was dangerously ill and at real risk of dying.  Nor is it, in my judgment, any defence to contend, as Mr Gerstenkorn contends, that on this occasion he did listen to a colleague, Dr Courtney, and did not act as he had originally intended.  
80.	The Panel were right to conclude the Mr Gerstenkorn's proposed course was so misguided, the motives for it so misconceived and the potential consequences so dire that the fact that the course was not in the event pursued did not absolve him from the allegation of professional misconduct.  
81.	The other aspect of Patient D was Mr Gerstenkorn's request for an angiogram.  Again, Mr Gerstenkorn relied upon material showing that an angiogram may be appropriate for renal patients.  He did not address the real issue.  Mr Lear pointed out that an angiogram is an invasive procedure carrying significant risks for the patient's health.  Good clinical practice, taking due account of the patient's interests, requires justification for such a procedure.  Patient D's records on 1 June 2004 showed a reasonable kidney function and blood pressure in the normal range.  There was therefore no justification for this invasive and risky procedure in the case of Patient D, and there was no basis for Mr Gerstenkorn's contention that his decision was within the band of reasonable response to the condition in which Patient D was actually placed.  There was therefore no error in the Panel's findings regarding Patient D.  
Impairment 
82.	On this appeal Mr Gerstenkorn did not seriously seek to challenge the separate finding of impairment as such, relying as he did on his case that the allegations of serious professional failure were unfounded.  Before me he simply denied that he was a poor team worker, did not sufficiently respect colleagues or patients, failed to prioritise patient well‑being over the success of the operation, was intransigent and obstinate, and on many occasions showed poor clinical judgment.  However, the cases that I have examined in some detail in this judgment, putting aside the many other adverse findings made by the Panel, well illustrate the dominant themes that the Panel identified.   
83.	In the case of Patient X, Mr Gerstenkorn simply ignored, without making any response to his team, the pleas of the nurses that the elderly patient who was plainly in very severe pain needed a local anaesthetic.   
84.	In the case of Patient S, he ploughed on with a risky and wholly inappropriate procedure in which he was not experienced or expert, disregarding the advice of his fellow consultant, Mr Connolly, and making no effort to ascertain whether there was any general protocol or agreement within the profession regarding such a transplantation.   
85.	When things went wrong his instinct was to blame others.  In the case of Patient D, he was minded to place the technical success of the operation over the survival of the patient, and did then proceed to require a risky and invasive procedure which was not justified by the actual discernible condition of the patient.   
86.	As I have already noted, before me as before the Panel, Mr Gerstenkorn was wholly unyielding and clung tenaciously to his position that he was blameless and acted without fail in the best interests of all 21 patients.   
87.	His general demeanour can be illustrated by a small, but telling, detail.  Mr Gerstenkorn strongly criticised the Panel's use of the term "barbaric" in respect of his treatment of Patient X, when Mr Lear had in fact used the expression during his cross‑examination regarding another patient, Patient V.  This criticism was fatuous, but showed the blind spot that the Panel identified in Mr Gerstenkorn's attitude generally, for Mr Lear had stated that: 
"... to expect a patient to undergo even a minor operative procedure without any form of anaesthetic because that was the surgeon's choice is, in my view, close on barbaric." (transcript day 34, page 5F) 
That observation plainly applied with equal force to the circumstances of Patient X.   
88.	In his reply Mr Gerstenkorn referred to the case of Zygmunt v the GMC [2008] EWHC 2643.  In that case Mitting J had set out a passage from Dame Janet Smith's fifth Shipman Report at paragraph 25.50, where she had identified some recurrent features of cases in which impairment of fitness to practise had been found to exist, which included "(a) that the doctor presented a risk to patients, (b) that the doctor had brought the profession into disrepute, (c) that the doctor had breached one of the fundamental tenets of the profession and (d) that the doctor's integrity could not be relied upon".  Mr Gerstenkorn sought to criticise the Panel in this case for not approaching the issue of fitness to practise according to the matters there identified.  However, the Panel found that Mr Gerstenkorn's character traits of intransigence and obstinacy rendered him dangerous in his chosen field (paragraph 69), that his poor clinical judgment prevented him from considering appropriate alternatives often to the detriment of his patients (paragraph 70), and his conduct and performance fell short of the guidance in good medical practice which sets out what is expected from all doctors registered with the GMC, and with which every doctor is required to be familiar, and to follow the guidance it contains (paragraphs 55 to 71).  As such, Mr Gerstenkorn's deficiencies were such that not only had he breached a number of the fundamental tenets of the profession but that he presented a risk to patients.  
Sanction 
89.	Guidance in respect of the court's approach to a review on appeal of the sanction imposed is given in the decision of the Court of Appeal in Raschid and Fatnani v the GMC [2007] 1 WLR 1460.  Laws LJ said as follows at paragraph 19 and 20: 
"19.  There is, I should note, no tension between this approach and the human rights jurisprudence. That is because of what was said by Lord Hoffmann giving the judgment of the Board in Bijl v General Medical Council [2002] Lloyd's Rep Med 60, paras 2 and 3, which with great respect I need not set out. As it seems to me the fact that a principal purpose of the panel's jurisdiction in relation to sanctions is the preservation and maintenance of public confidence in the profession rather than the administration of retributive justice, particular force is given to the need to accord special respect to the judgment of the professional decision‑making body in the shape of the panel. That I think is reflected in the last citation I need give. It consists in Lord Millett's observations in Ghosh v General Medical Council [2001] 1 WLR 1915, 1923, para 34:
    'the Board will afford an appropriate measure of respect to the judgment of the committee whether the practitioner's failings amount to serious professional misconduct and on the measures necessary to maintain professional standards and provide adequate protection to the public. But the Board will not defer to the committee's judgment more than is warranted by the circumstances.'
20.  These strands in the learning then, as it seems to me, constitute the essential approach to be applied by the High Court on a section 40 appeal. The approach they commend does not emasculate the High Court's role in section 40 appeals: the High Court will correct material errors of fact and of course of law and it will exercise a judgment, though distinctly and firmly a secondary judgment, as to the application of the principles to the facts of the case."
The two principles which Laws LJ identified as especially important in this jurisdiction, the preservation of public confidence in the profession and the need in consequence to give special place to the judgment of the professional Tribunal (referred to at paragraph 26), were considered in Gupta v the General Medical Council [2007] EWHC 2918 (Admin) to be particularly important where it is not a question of misconduct but of standards of professional practice and treatment (see paragraph 33).
I can be relatively brief on this issue.  In his submissions to me Mr Gerstenkorn was frank that if the findings of unprofessional conduct and impairment stood, the sanction was, as he put it, a judgment call.  I note the Panel's important conclusion at point 13 that:
"In relation to Patients S and X, his actions were fundamentally incompatible with his continuing to be a registered doctor."  
90.	Having considered those cases at some length in this judgment, I see no proper basis upon which I could interfere with the Panel's conclusion in that respect.  
91.	Again, in his reply, Mr Gerstenkorn referred to the case of Azzam v the General Medical Council [2008] EWHC 2711 (Admin).  Mr Gerstenkorn argued that the Panel had erred in not looking forward to see what could or should be happening in the future as regards his practice, and in particular it ought to have considered whether it demonstrated any willingness to remedy any deficiencies.  
92.	In the case of Zygmunt, the court said at paragraph 31: 
"In a misconduct or deficient performance case, the task of the Panel is to determine whether the fitness to practise is impaired by reason of misconduct or deficient performance. It may well be, especially in circumstances in which the practitioner does acknowledge his deficiencies and take prompt and sufficient steps to remedy them, that there will be cases in which a practitioner is no longer any less fit to practise than colleagues with an unblemished record."
93.	However, in this case Mr Gerstenkorn did not acknowledge his deficiencies.  The Panel noted, in his submissions on impairment following the Panel's findings of fact, Mr Gerstenkorn stated that his professional practice had not been shown to be seriously deficient.  The Panel also noted that it had received no evidence of remediation, and found that Mr Gerstenkorn's submissions on impairment themselves indicated a lack of insight and a real danger of repetition (see in paragraph 74 of the decision).  
94.	There was therefore no evidence before the Panel that Mr Gerstenkorn had taken any steps to remedy his deficiencies.  
Other points 
95.	In conclusion I shall deal with a number of ancillary points that Mr Gerstenkorn raised to question the Panel's decision.  I shall concentrate on those that Mr Gerstenkorn adopted in his oral submissions before me.  
96.	A dominant theme in Mr Gerstenkorn's oral submissions was that the whole procedure leading to the proceedings before the Panel amounted to an abuse of process.  However, this was precisely the submission advanced to the Panel itself on 5 February 2008 and which took ten days of hearing time to resolve.  The Panel's decision occupies 14 pages of transcript (transcript day 9, pages 1 to 14).  
97.	The Panel first noted that allegations of abuse should have been ventilated by judicial review, referring to Dzikowski v the GMC [2006] EWHC 2008.  I agree, and the observations of Hodge J in that case apply with equal force to any attempt to raise in a section 40 appeal against the Panel's decision any alleged matters of abuse of process in the period leading up to the Panel's proceedings.  In any event, the Panel's rejection of the abuse allegations on their merits was thorough and, in my view, impeccable.  As regards, for example, delay, the Panel found that the length of time to bring the case on was due to a number of factors, including the complexity of the case, the large number of allegations involved, delays in obtaining medical notes and witness statements from the BCH Trust, and difficulties encountered in communicating with Mr Gerstenkorn and his solicitors.  
98.	I should mention one point in this connection because it featured quite strongly in the hearing before me.  Mr Gerstenkorn complained that he had not been able to see and interview staff and patients at the BCH Trust.  However this same allegation was correctly rejected by the Panel.  Following Mr Gerstenkorn's dismissal from the BCH on 18 October 2006, there was no impediment to Mr Gerstenkorn approaching Trust staff or patients, and his failure to do so was a consequence of an incorrect understanding on his part and apparently also on the part of his solicitor.  
99.	The second matter is the decision of the Panel to refuse Mr Gerstenkorn's application on 8 January 2009 for an adjournment of the hearing to enable him to present his evidence.  The Panel gave a full and carefully reasoned determination that runs to nine pages of transcript (transcript day 43, pages 1 to 9).  The Panel's decision was a case management one taken by a professional disciplinary body, with which this court should be slow to interfere, provided it is satisfied that the appellant had a fair hearing (see Thompson (R on the application) v General Chiropractic Council [2008] EWHC 2499 (Admin).  
100.	At first sight Mr Gerstenkorn's application appeared a strong one.  The GMC's case had been presented in full over a period of 30 days or more.  Mr Gerstenkorn's inability to attend to present his defence on the proposed dates was due to his professional duties in Germany, which he could abandon only at the cost of being deprived of funds to support himself and his family.  Given the delays that had already occurred and the length of the proceedings generally, it might not have been considered unreasonable to postpone proceedings for a few further months if that would enable Mr Gerstenkorn to attend the hearing.  The fact that Mr Gerstenkorn had cross‑examined the GMC witnesses extensively, and in the course of such cross‑examination had laid out his own grounds of defence, was a partial, but not necessarily complete, answer to the application.  
101.	However, the Panel believe that there were other significant barriers to his attending a reconvened hearing in May 2004 or shortly thereafter.  As the Panel noted, Mr Gerstenkorn had said in his letter to the GMC dated 6 December 2008: 
"There would be further foreseeable difficulties with a reconvened re‑opening of a fitness to practise hearing after 30.4.2009."  
102.	The Panel also noted that, in a letter to the GMC dated 19 July 2008, Mr Gerstenkorn had stated the following: 
"The GMC need to fund the videolink from Germany and Northern Ireland as I have no finances to do so or to attend in Manchester.  Furthermore, the GMC need to clear my debt of £25,000, €35,000 and my overdrafts as they are responsible for them.  
In addition I require funding to prepare my defence and funding to spend a further two months full‑time work and more for the GMC in 2009 and preparation time.  In addition, there is the issue of employment should I not be allowed to work to support my living.  What kind of job is the GMC offering me after the hearing?  How much funding are you providing to support my children in the meantime?  Unless all these issues are solved, there cannot be any progression in this GMC case."  
103.	In the light of this material, the Panel, in my view, had reasonable grounds for believing that there was a real risk that Mr Gerstenkorn would not be prepared to attend a reconvened hearing in May 2004 or shortly thereafter unless a series of conditions were met that in all probability could not reasonably be met.  
104.	Furthermore, as the Panel specifically found, it had no credible assurances or any guarantee from Mr Gerstenkorn himself that granting his application to adjourn would secure his attendance in the future.  The Panel simply could not be confident that an adjournment would result in his attendance at a further reconvened hearing, or that if he did attend he would not attempt to prevent the proceedings from continuing.  It is on this footing that I conclude that the Panel's decision to refuse an adjournment was fair, reasonable and lawful in all the circumstances.  In any event, any potential unfairness to Mr Gerstenkorn was in substance removed by the fact that he did subsequently attend the reconvened hearing to present his case over three days, and then attended to make closing submissions having had before him all necessary materials effectively to put his closing case.  
105.	Mr Gerstenkorn, however, makes two complaints about that subsequent procedure.  First, he argues that he was deprived of the advantage of being cross‑examined by Mr Donne QC, leading counsel for the GMC before the Panel, on his evidence in chief.  This is a bold and somewhat paradoxical argument.  In this case it is impossible to proceed on the footing that Mr Gerstenkorn's case in his own defence, particularly his case regarding patients X, S and D that I have examined in some detail, would have emerged significantly strengthened after extensive and no doubt penetrating exposure to cross‑examination by an experienced and skilled advocate, armed, as he was, with the evidence, including that of Mr Lear, available in this case.  I therefore dismiss this argument as fanciful.
Secondly, Mr Gerstenkorn argues that the Panel acted unfairly in refusing to grant a postponement of just four hearing days from 26 January to 30 January 2009 in order to hear his expert's evidence.  However, the Panel's decision not to grant a postponement was taken on 19 January 2009, as I have already explained earlier in this judgment, after the Panel had already lost two sitting days the previous week following Mr Gerstenkorn's return to Germany, and would lose a further seven sitting days if the case were to be adjourned to 30 January 2009.  In these circumstances I find nothing unreasonable, unfair or unlawful in the Panel's decision to grant an adjournment until 26 January 2009, so long as Mr Gerstenkorn confirmed in writing by 9.30am the following morning that his expert would be available to give evidence on that date.
Finally, there appear in Mr Gerstenkorn's materials some miscellaneous points regarding, for example, the standard of proof, alleged misdirections made by the Panel, inadequate weight given to Mr Gerstenkorn's evidence and to that of his experts, and inadequacy of reasoning by the Panel.  These points were not pursued at the hearing.  For the avoidance of any doubt, I have, in any event, considered them and find that none is with merit or capable of casting doubt on the legality of the Panel's decisions.  
For these reasons, I dismiss the appeal.
106.	MISS GALLAFENT:  My Lord, I am grateful.  As I indicated I will send through to Mr Gerstenkorn a short summary of your Lordship's judgment in order that he might know what the outcome is today.  Might I also suggest that, although it would not usually be the course to make a summary assessment of costs where the matter has gone over one day, in the particular circumstances of this case it might be appropriate to do so, but to give Mr Gerstenkorn, say, 14 days or 21 days in which to put in submissions in reply, and then your Lordship can consider anything he wishes to say on the point.  I say that given the time it has taken to get to this point overall, and given in particular that your Lordship, I hope, has seen a statement of costs ‑‑ 
107.	MR JUSTICE KENNETH PARKER:  Yes, I have.
108.	MISS GALLAFENT:  I am very grateful.  They were of course served on Mr Gerstenkorn prior to the initiation of the hearing last week.  They are, in my submission, relatively modest costs for a three‑day hearing including extensive preparation on my part and my instructing solicitors.  They do not include any additional costs for this morning for taking of judgment.  So what I would invite your Lordship to do is make an order that Mr Gerstenkorn pay the General Medical Council's costs in the sum requested ‑‑ that is £20,725.50 ‑‑ and that he have, say, 14 or 21 days within which to put in some written submissions as to his position, both on no doubt the principle of whether he should pay at all and on the amount to assessed and we could take matters from there.
109.	MR JUSTICE KENNETH PARKER:  I think what I should do is to give an indication at this stage on the basis of what I have heard and on general principle that I am minded to award the GMC its costs, and that also it appears to me that the amount of £20,725.50 is a fair and reasonable amount, not including whatever the costs may be this morning, but I give Mr Gerstenkorn 14 days in which to make any submissions in writing as he is disposed to make in relation both to the question of whether he should pay costs and as to the amount of those costs.  I do not know whether you will want some period to reply.
110.	MISS GALLAFENT:  Perhaps if you give us seven, but I would be surprised if we reply.  
111.	MR JUSTICE KENNETH PARKER:  Yes, you have seven days to reply to any such submissions.
112.	MISS GALLAFENT:  I am grateful.