Sadler v. General Medical Council (GMC) [2003] UKHL 59 (15 July 2003)
ADVANCE COPY

	Privy Council Appeal No. 59 of 2002

Anthony Peter Sadler	Appellant
	v.
The General Medical Council	Respondent

	FROM

THE COMMITTEE ON PROFESSIONAL PERFORMANCE
OF THE GENERAL MEDICAL COUNCIL
	---------------

	JUDGMENT OF THE LORDS OF THE JUDICIAL
	COMMITTEE OF THE PRIVY COUNCIL,
	Delivered the 15th July 2003
	------------------

	Present at the hearing:-
			Lord Rodger of Earlsferry
Lord Walker of Gestingthorpe
Sir Philip Otton
		  	[Delivered by Lord Walker of Gestingthorpe]
	------------------

1. 	The Statutory Framework 
The regulation of the medical profession is entrusted to the General Medical Council (“the GMC”), a long-established body whose constitution is now to be found in the Medical Act 1983 (“the 1983 Act”).  The GMC’s regulation of doctors’ fitness to practise was until 1997 undertaken mainly by two committees, the Professional Conduct Committee (concerned with allegations of serious professional misconduct and convictions for criminal offences) and the Health Committee (concerned with unfitness to practise caused by physical or mental illness).  

2. 	This appeal is concerned with a relatively new extension of the provisions regulating fitness to practise.  The Medical (Professional Performance) Act 1995 (“the 1995 Act”) amended the 1983 Act so as to increase the protection of the public in respect of practitioners who, while not guilty of serious professional misconduct, have fallen seriously short of proper standards of professional performance.  The new arrangements are to be found principally in section 36A of the 1983 Act, as inserted by section 1 of the 1995 Act, and in the General Medical Council (Professional Performance) Rules 1997 (“the Rules”).  Section 36A and the Rules came into force on 1 July, 1997. 
  
3. 	The general effect of the changes was the establishment of two new committees of the GMC, that is the Committee on Professional Performance (“the CPP”) and the Assessment Referral Committee (“the ARC”).  Under section 36A the CPP has a duty, if it finds the standard of professional performance of a registered medical practitioner to have been seriously deficient, to take action by directing (section 36A(1)), 
“(a)  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 

(b) that his registration shall be conditional on his compliance, during such period not exceeding three years as may be specified in the direction, with the requirements so specified.”

However such action by the CPP is a matter of last resort.  The Rules contain quite complicated provisions designed to facilitate the rehabilitation of a practitioner whose professional performance has been called into question.  If he or she acknowledges that there is a problem and agrees to cooperate in a scheme for mentoring and retraining, any formal adjudication by the CPP may be unnecessary.  But where a plan for retraining goes wrong, as unfortunately happened in this case, the CPP may find itself having to adjudicate on complaints which originated a considerable time before.

4. 	The Rules provide for three main processes: screening; assessment;  and  if necessary, formal adjudication by the CPP as to a practitioner’s professional performance.  The processes may become quite protracted in that there may be as many as three assessments before the eventual decision that a practitioner is to be permitted to continue unrestricted practice, or alternatively that he or she should undergo formal adjudication.  What follows is only a brief summary of the effect of the 34 rules and their three schedules. 
5. 	When any relevant complaint or information about a practitioner is received by the GMC it is referred to a screening process undertaken by a medical screener and a lay screener, who are respectively medical and non-medical members of the GMC. They may agree that no further action is necessary (rules 3 to 5).  If they consider that the practitioner ought to be assessed and he or she agrees, the medical screener prepares a statement in order to initiate the assessment process, thus obviating the need for the ARC to become involved.  Otherwise the medical screener refers the case to the ARC, which decides whether there should be an assessment (rules 6 and 14 to 16). 

6. 	The assessment process is initiated and supervised by a case co-ordinator who is a medical member of the GMC (rule 7).  It is conducted by an assessment panel including a doctor who is lead assessor, another doctor and a lay person, none of whom is a member of the GMC.  The procedure to be followed by an assessment panel is prescribed in some detail (rule 11) but it is essentially informal.  The panel conducts interviews rather than examining witnesses.  The persons whom they interview include the complainant, the practitioner and up to five persons nominated by the practitioner.  The assessment panel can also seek advice or assistance from any person who might in their opinion assist them. If a practitioner fails to co-operate with the panel they are to make a report to the case co-ordinator, who refers the case to the CPP (rule 12).  On completing their assessment the panel prepare a report and send it to the case co-ordinator or (in a case where the CPP itself has directed the assessment, as it can under rule 27) to the CPP (rule 13).  By rule 13(2) the report is required to include the panel’s opinion 
“on such of the following matters as appear to them to be relevant in any case, that is to say whether – 
(a) the standard of the practitioner’s professional performance has been seriously deficient;  
(b) the standard of the practitioner’s professional performance is likely to be improved by remedial action;
(c)  the practitioner should limit his professional practice, or cease professional practice;
(d)  no further action needs to be taken on the Report

and in each case the Panel’s reasons for their opinion.”

7. 	Part V of the Rules (headed “Procedure following assessment”) contains rules 17 to 26 and is of particular importance in this case.  Rule 17 in effect sets out options for the case co-ordinator (acting in consultation with a lay adviser) on receipt of the assessment panel’s report.  The outcome may be that the case is referred at once to the CPP or that it is decided to take no further action.  Otherwise (and in practice this seems to happen in the majority of cases) the case co-ordinator is to draw up a statement of requirements and send it to the practitioner (rule 17(10)).

8. 	Paragraphs (1), (2) and (3) of rule 18 provide as follows:
“(1) In drawing up the statement of requirements the case co-ordinator shall have regard to the findings and opinions in the Report of the Assessment Panel and the statement may include such of the following matters as are appropriate in any case – 
(a)	the aspects of the practitioner’s professional performance which he is required to improve; 

(b)	the standard of professional performance which the practitioner is required to achieve;

(c)	the aspects of the arrangements for the running of his professional practice which the practitioner is required to improve;  

(d)	the limitations which the practitioner is required to impose on his professional practice. 

(2)  The statement of requirements shall state the date on which the practitioner is to have fulfilled the requirements set out in the statement of requirements and the period during which the statement of requirements shall have effect and shall include a provision that further assessment is to be carried out after the date on which the practitioner is to have fulfilled those requirements.

(3)  The date referred to in paragraph (2) shall be no longer than one year from the date on which the practitioner agrees, under paragraph (4), to comply with the statement of requirements.”

If the practitioner agrees to comply with the statement of requirements and consents to appropriate disclosure of that fact, the process of compliance begins.  Otherwise the case is referred to the CPP.  By rule 19 the case co-ordinator and the practitioner may agree in writing to modify the statement of requirements.  If the practitioner declines to agree to modification, the case co-ordinator has the option of referring the case to the CPP or continuing with the original statement.

9. 	Once the process of compliance has been embarked on, there are several possible outcomes.  The most important of these are as follows:
(1)	successful compliance followed by a successful second assessment under rule 20;

(2)	a second assessment which is not wholly successful, followed by a second statement of requirements (also regulated by rules 18 and 19) and a third assessment under rules 23 and 24 (which largely incorporate rules 20 and 17 respectively, except that there can be no third statement of requirements); 

(3)	referral of the case to the CPP by the case co-ordinator under rule 25(1).  

Rule 25(1) is of particular importance, because of a jurisdictional point taken on this appeal.  It provides as follows:
“Where, at any stage in the consideration of a case after an assessment has been carried out, the case co-ordinator is of the opinion that –
(a)	it is necessary for the protection of members of the public or would be in the best interests of the practitioner for a direction for suspension or for conditional registration to be made;  or 
(b)	the practitioner is – 
(i)	failing to comply with the requirements set out 	in the state of requirements, or
(ii)	failing to benefit from and is unlikely to benefit 	from any education or training which he is 	undertaking in accordance with a statement of 	requirements;  or

(c)	the practitioner’s fitness to practise may be seriously impaired by reason of his physical or mental condition

he shall refer the case to the Committee on Professional Performance together with a statement of his opinion and his reasons for it.”

10. 	By rule 26 a reference to the CPP may be withdrawn in certain cases.  By rule 27 the CPP itself can give directions requiring an assessment to be carried out; but such directions seem to be rare in practice, as the CPP is usually the last port of call under the Rules.

11. 	A practitioner has a right of appeal to the Board from an adverse decision of the CPP, but only on a question of law (section 40(1)(aa) and (5) of the 1983 Act as amended).  The scope of a question of law is to be interpreted generously, so as to avoid injustice: Stefan v General Medical Council (6 March, 2002, [2002] UKPC 10), an appeal from a decision of the Health Committee (to which the same provisions apply).

The Krippendorf Case
12. 	The Rules were considered by the Board in Krippendorf v General Medical Council [2001] 1 WLR 1054. The practitioner concerned in that case had since 1969 practised in several overseas countries, and was a recognised specialist in child health.  In 1997 she was employed as a locum consultant by the Shetland Health Board.  In 1998 there was a written complaint about her injection technique in the immunisation of over 200 school children.  There was also a complaint about her performance in two potential child protection cases.  The procedure laid down by the Rules was followed but the practitioner was asked to complete a lengthy document (called a portfolio) providing information about herself and her medical practice.  After expressing concerns she was told that the portfolio was not part of the assessment. 

13. 	The assessment panel did not regard the original complaint about the practitioner’s injection technique as being of primary importance.  The assessment was interrupted by her illness and the assessment panel referred the case to the CPP, which in March 1999 directed that the assessment procedure should be completed. It was completed and in June 1999 the panel reported under Rule 13 stating their opinion that her professional performance had been seriously defective, and that she required full retraining in general paediatrics.  In July 1999 the CPP held a “performance hearing” under Schedule 3, Part III of the Rules.  The legal assessor gave the CPP certain advice (to which it will be necessary to return).  The CPP, going further than the assessment panel, decided that the standard of the practitioner’s professional performance was seriously deficient, and that she should not engage in either clinical or non-clinical practice.  It suspended her registration with immediate effect.

14. 	On the practitioner’s appeal the Board (at page 1056) quoted the GMC’s then current guidance as to the meaning of “seriously deficient performance”:
“‘Seriously deficient performance’ is a new idea.  We have defined it as a ‘departure from good professional practice, whether or not it is covered by specific GMC guidance, sufficiently serious to call into question a doctor’s registration’. This means that we will question your registration if we believe that you are, repeatedly or persistently, not meeting the professional standards appropriate to the work you are doing - especially if you might be putting patients at risk.  This could include failure to follow the guidance in our booklet Good Medical Practice.” 

The Board saw no reason to criticise this guidance, except for substituting “have been” for “are” in two places in the third sentence (and that change has been made in the GMC’s current guidance).

15. 	The Board decided that the assessment panel had made a basic error in assessing her current competence rather than her actual past performance.  The Board stated (at page 1063) that with an unimportant exception 
“everything in the Rules suggests that it is the duty of the CPP and the panel to have regard to the track record of the practitioner in the work which he has actually been doing.  It is not their function to conduct an examination equivalent to that of a student’s examination board.  Theoretical questions are relevant only in so far as the answers may throw light on the practitioner’s professional performance in the specific areas of work which he has actually been doing.”

16. 	Similarly the CPP fell into error in relying primarily on the panel’s report, which had virtually disregarded the original grounds of complaint.  The Board stated at page 1067,
“Their Lordships do not go so far as to hold that in every case the complaint which triggers an assessment requires investigation by the panel and the CPP.  On the facts of the present case, however, the complaints should in their Lordships’ opinion have been investigated because nothing related more directly to the standard of the appellant’s actual professional performance over the relevant period.  The failure of both the panel and the CPP to investigate the complaints reflects their erroneous concentration on her professional competence rather than her actual professional performance.”

The CPP had also erred in relying on the practitioner’s answers to the portfolio questions.  This was unfair since she had been told that it was no part of the assessment.  The Board therefore advised that the CPP’s determination should be quashed. 

17. 	The Board’s decision in Krippendorf was given on 24 November, 2000, that is soon after the present case was referred to the CPP for a performance hearing.  The assessment panel’s report on the appellant had therefore (as described below) been prepared without the benefit of the Board’s guidance in Krippendorf, and that guidance had a very important effect on the advice which the legal assessor gave to the CPP in this case.  It was not suggested that their Lordships should depart from Krippendorf (with the exception of what seems to have been no more than a passing reference to the standard of proof, to which it will be necessary to return).  But without casting any doubt on the decision their Lordships feel that the distinction between competence and performance, drawn in Krippendorf, should not be taken too far.  It is important that any assessment panel should have proper regard to the complaint or other information which originally set the assessment in motion.  But in most cases there is an obvious correlation between competence and performance.  Moreover the assessment panel is concerned, not only with assessing past professional performance, but also with what needs to be done to improve a practitioner’s performance, both in the public interest and in the practitioner’s own best interests.  Rules 13(2)(b), 18(1) and 25(1)(b) all reflect (in different ways) the very important remedial element in the procedure laid down in the Rules.  The purpose of assessment is not to punish a practitioner whose standards of professional performance have been seriously defective, but to improve those standards, if possible, by a process of supervision and retraining, for the protection and benefit of the public.  The process of assessment must include forming a view as to the standard of past performance, but if it is to achieve its objectives the process must not be restricted to that sort of backward-looking exercise.
The Facts
18. 	The appellant originally trained as a biochemist.  He qualified as a doctor in 1980 and became a member of the Royal College of Obstetricians and Gynaecologists (“the RCOG”) in 1986.  Between 1990 and 1994 he worked at a hospital in South Africa.  On 1 June, 1995 he took up an appointment as a consultant in obstetrics and gynaecology at the South Devon Healthcare NHS Trust (“the South Devon Trust”).  He worked primarily at Torbay Hospital,  The appellant’s evidence, largely uncontradicted on these points, was that the department at Torbay Hospital was not a happy place to work, and that matters got worse after the appointment of a new clinical director in February 1996.  The new clinical director, Mr Foulkes, told the applicant that his job had limited funding and was created for the sole purpose of helping to meet the new rules as to junior doctors’ contracts. In particular, the clinical director objected to the appellant’s new ultrasound clinic.  The appellant found the clinical director aggressive and felt his confidence being undermined.  By July 1996 matters had got sufficiently bad that the appellant agreed to take unpaid leave while consideration was given to an audit of his professional performance, and to a mentor (Mr Stannard) being appointed for him.  This took place between September and December 1996.  On 20th December, 1996 the RCOG’s Regional College Adviser noted, at a meeting at Torbay Hospital, that the appellant’s performance in the previous three or four months had been satisfactory but he had been under mentorship and his surgical work had been less arduous.  It was agreed that a prospective and comparative audit should be carried out over a period of six months.  

19. 	On 1 July 1997 the new professional performance regime came into force.  Events before that date are of background relevance only.  Unfortunately between 24 July and 11 December, 1997 five separate incidents occurred in the course of the appellant’s work as a surgeon at Torbay Hospital which led to his being suspended on 15 December, 1997.  On 16 December, 1997 the South Devon Trust’s medical director (Dr Broomhall) wrote to the GMC’s Fitness to Practise Directorate, reporting on the appellant’s mentorship, the formal audit, and two cases of serious post-operative bleeding which had occurred since the audit.  The letter correctly recorded that the formal audit had concluded that it had found no significant difference between the performance of the appellant and that of the other surgeons within the department. 

20. 	In February 1998 the South Devon Trust provided the GMC with details of five incidents (including the two mentioned above) and a large volume of documentary material.  In April 1998 the Trust expressed serious concern at “this unacceptable delay [which] is causing disruption and unnecessary stress in the individual concerned, the department and the Trust as a whole”. Solicitors instructed on behalf of the appellant were also in correspondence with the GMC.  On 20 July, 1998 the appellant was asked to agree to be assessed.  The medical screener identified four cases (later referred to as index cases 1, 2, 3 and 5).  The appellant declined to agree.  The medical screener then referred the case to the ARC which on 8 September, 1998 directed an assessment, stating that they were particularly influenced by evidence as to the appellant’s surgical techniques, management of cases post-operatively and decision making.  The assessment process began with a first phase at Torquay on 17 and 18 September, 1998.  The second phase took place at a London hospital on 24 November, 1998.  By then it was nearly a year since the appellant had been suspended, and nearly 18 months since he had last been operating without any restriction, mentorship or supervision. 

21. 	The report of the assessment panel is over 200 pages long, but much of it consists of an account of how the panel had conducted their work, and statistical and other appendices.  During the first phase the panel interviewed the appellant, the appellant’s five nominated referees and a large number of other persons on the staff at Torbay Hospital.  During the second phase the panel observed the appellant examining patients and questioned the appellant about his surgical skills.  The report concluded (page 46) that
“… there is cause for concern that Mr Sadler’s operative skills at major surgery may be unsatisfactory.  To have two out of ten abdominal hysterectomies returned to theatre for bleeding is clearly a cause for concern. However we accept that because the numbers involved were so small this would not reach statistical significance in a formal test and no definitive conclusion could be drawn. Additional evidence is required. Surgery involves a multidisciplinary team approach, but it appears that Mr Sadler no longer has the confidence of almost all of those who work with him.”

The appellant’s performance in these respects was therefore considered unacceptable.  After considering some deficiencies in his performance during the second phase of the assessment, the report concluded (page 50),
“Taken together with the conclusion that his operative skills are at present unacceptable and in the knowledge that obstetric emergencies may involve major blood loss and/or may require complex major gynaecological surgery the assessors have serious cause for concern about the obstetric practice of Mr Sadler.”

22. 	The panel’s recommendations (page 51) were as follows:
“There are so many good aspects of the practice of Mr Sadler, in so many of the categories of good medical practice, that we do not recommend that he should cease medical practise. 

However, there are serious deficiencies in his obstetric and gynaecological practice.  In particular we believe that during the period leading up to his suspension Mr Sadler was working under difficult circumstances that had led to an erosion of his confidence.  In addition he has not now operated for over twelve months.  Taking these facts together we cannot recommend that he should return to unrestricted practice. 

We believe his practice is likely to be improved by remedial action.  We recommend that he should be given the opportunity to undergo targeted retraining and supervision during a temporary period with limited restrictions of his practice.”

The report went on to set out some of the recommendations in more detail.

23. 	It was then for the case co-ordinator to decide (under rule 17) what course to take.  The panel’s report had mentioned references (by some of the operating theatre staff at Torbay Hospital) to some degree of tremor in the appellant’s hands and the case co-ordinator wished to investigate this before making a decision.  The appellant was separately examined by two specialists in June 1999.  They detected some physiological tremor, but did not regard it as having a neurological cause, or as being abnormal.  The case co-ordinator then produced a statement of requirements dated 28 July 1999.  It contained five paragraphs, some of which must be set out in full:
“(1)  Mr Sadler is required to take such action as is necessary to be able to demonstrate, at a further assessment of his performance to be conducted as specified below, an acceptable standard of professional performance in relation to the following aspects of his performance:
(a)	Major abdominal and vaginal surgery.

(b)  His obstetric practice in cases of patients at risk of 	major blood loss. 

(c)	Working within the limits of his professional competence. 

(2) [This set out restrictions on the appellant’s professional practice during the period during which the statement had effect.]

(3)  Mr Sadler is required to have fulfilled the requirements set out above in this statement within twelve months of the date on which he agrees to comply with this statement, and to have undergone a further assessment of his performance, to be arranged by the General Medical Council, within a further three months. 

(4)  This statement shall have effect for a period of 15 months from the date on which Mr Sadler agrees to comply with this statement.

(5)  [This related to a further undertaking limited to gynaecological oncology.]”

24. 	On 24 August, 1999 the appellant agreed to comply with the statement of requirements.  There was then a most unfortunate delay before any progress was made with arranging retraining. Their Lordships are not concerned to attempt to apportion responsibility for the delay – and arrangements for the retraining of a consultant who has been suspended do no doubt raise many difficulties, as appears from some of the correspondence in evidence – beyond stating that the delay was not the appellant’s fault.  It was not until February 2000 that the Post Graduate Dean for the south west region told the GMC that he had arranged a six-month training attachment at the Frenchay and Southmead Hospitals in Bristol; and the attachment did not actually begin until 24 July 2000 (after the appellant had spent a  fortnight undertaking simulated surgical training at Cardiff).  By then 18 months had passed since the appellant’s suspension, and two years since the appellant had last been operating without any constraint.

25. 	The British Medical Association (“the BMA”) wrote to the GMC about the delay.  On 11 July 2000 a Senior Performance Assessment Officer at the GMC wrote to the BMA’s representative, 
“I entirely understand the point you have raised regarding the timetable for Mr Sadler’s statement of requirements, and I have, in fact, written to him on 10 May, 2000 to explain that we understand that the statement will not be attainable in the original timeframe due to no fault of his own.  We will bear in mind your suggestion about allowing an extra 12 months, given the delay to date.”

However there was never any written agreement altering the statement of requirements.  The GMC had indicated willingness to agree to an alteration, but the point was overtaken by events. 

26. 	The appellant’s training at Bristol had an abrupt and premature end.  He spent a few days observing operations.  Then he began operating under the supervision of a consultant, Mr Vyas. On the third day that he was operating, 9 August, 2000, he undertook an abdominal hysterectomy of a post-menopausal patient.  In the course of the operation he severed her right ureter. Another surgeon was called to repair the ureter.  The supervising surgeon completed the operation (which has come to be called case A).  The decision to terminate the appellant’s retraining placement was taken that evening and the appellant was informed on the following day.

27. 	The appellant feels strongly that his retraining was badly mishandled.  He had been out of practice for a considerable time, and he considers that he should have had a much more gradual reintroduction to surgery.  He also considers that the supervising surgeon should have taken responsibility for case A at an earlier stage, as soon as it became apparent that it was (because of adhesions and some distortion of the patient’s anatomy) a more difficult case than had originally been supposed.

28. 	The appellant made some efforts to try to obtain a further training placement, but these were unsuccessful.  By a letter dated 2 November, 2000 the appellant was informed of the case co-ordinator’s decision to refer his case to the CPP under rule 25(1)(b)(i) for the following reason:
“The GMC has received a report from South Devon Healthcare NHS Trust, indicating that Mr Sadler has been suspended from his remedial re-training by North Bristol NHS Trust.  Mr Sadler is therefore no longer being trained in accordance with the Statement of Requirements he agreed to comply with on 24 August, 1999.”

The Board delivered its opinion in Krippendorf about three weeks later. 

29. 	The date for the hearing before the CPP had to be postponed several times because of the appellant’s illness.  The hearing eventually commenced on 29 April, 2002 and occupied sixteen days between then and 1 July, 2002, when the CPP announced its decision.  It found the appellant’s standard of professional performance to have been seriously deficient in the area of good operative care.  It decided that the right way to dispose of the case was to make the appellant’s registration conditional, for a period of three years, on his compliance with three requirements, which the CPP believed to be proportionate to the deficiencies and necessary in both the appellant’s and the public interest.  The conditions required for the appellant not to practise any major gynaecological surgery, to undertake an appropriate remedial training and assessment programme if he wished to return to major gynaecological surgery, and to notify the GMC promptly of any professional appointment which he undertook.  The findings of fact and the legal basis on which the CPP based this decision are best considered in relation to the appellant’s grounds of appeal.

The grounds of appeal.
30. 	Five grounds of appeal have been relied on before their Lordships. They are as follows:

(1)	that the case co-ordinator’s referral to the CPP was not authorised by rule 25(1)(b)(i) and that as a result the CPP had no jurisdiction to hear the appellant’s case;

(2)	that the CPP misinterpreted or misunderstood the evidence in respect of each of the four index cases (designated 1, 2, 5 and A) on which the CPP made adverse findings, or that its findings were unsupported by evidence;

(3)	that the CPP erred in reaching a conclusion which was not part of the case advanced by the GMC;

(4)	that the CPP erred in reaching those findings to the equivalent of the criminal standard of proof; and

(5)	that the composition of the CPP was such as to give rise to a perception of bias.

The first ground of appeal: jurisdiction
31. 	The first ground of appeal, which goes to jurisdiction, turns on an issue which was raised only at a very late stage, that is in the closing submissions on behalf of the appellant made by Mr Hendy QC on the fourteenth day of the hearing.  The point had not been raised on the seventh day when Mr Hendy tried unsuccessfully to make a submission of no case to answer.  However, Mr Havers QC (for the GMC) did not take any point on the delay, and accepted that their Lordships should consider the point on its merits.

32. 	Mr Hendy developed his submissions in various directions but it appears to their Lordships that he had essentially three points. First, under rule 25(1) the case co-ordinator was obliged to specify the ground on which she made a referral, and the reasons for it. This was not a mere procedural technicality, and if rule 25(1)(b)(i) was inapposite it was no answer to say she could have relied on rule 25(1)(a) or rule 25(1)(b)(ii).  Their Lordships accept that submission.

33. 	The second submission was that rule 25(1)(b) deliberately uses the present tense (“is failing”) and that the case co-ordinator could not rely on any alleged failure on the part of the appellant after 24 August, 2000, when the time for compliance with the statement of requirements expired.  The third submission was that the appellant did not at any stage fail to comply with the statement of requirements;  he did all he could to comply, it was said, but was frustrated by circumstances beyond his control. These two submissions call for more extended consideration.

34. 	The statement of requirements did not specify any dates, since time was to run from the date when the appellant agreed to comply with the statement.  But a letter dated 1 September, 1999 from the GMC to the appellant correctly set out the specific dates: the statements of requirements was to have effect until 24 November, 2000, and the appellant was required to have fulfilled the requirement by 24 August, 2000, and to have undergone a further assessment by 24 November, 2000.  The case co-ordinator’s referral letter was sent on 2 November, 2000 and it gave as a reason the termination of the appellant’s retraining (which had occurred on 10 August, 2000) and the consequence that he was no longer being trained.

35. 	Mr Hendy’s second submission proceeded on the assumption that the appellant’s obligations came to an end on 24 August, 2000. The legal assessor’s advice to the CPP put forward a wholly contrary view.  He said in his legal advice on the fifteenth day:
“My advice to the Committee is that, following a careful analysis of the statement of requirements and of the rules, the legal position is that no reference should have been made under rule 25(1)(b)(i).  That is because, when the statement of requirements is carefully looked at, it becomes clear that on 2 November, 2000, when the reference was made, the time within which compliance had to occur had not yet elapsed.  Mr Sadler could not then be said to have failed to comply with the statement of requirements.”

If the transcript is correct (and neither side suggested it was incorrect ) it shows that the legal assessor was advising that the appellant would not be in breach of his obligation to comply until 24 November, 2000;  whereas the appellant’s submission is that his obligation to comply came to an end (at least so far as is now material) three months before.

36. 	In their Lordships’ view neither of these rather surprising interpretations is correct.  Under paragraphs 1 and 3 of the statement of requirements the appellant was under an obligation to have taken effective action to improve his professional performance by 24 August, 2000 at the latest.  The expiration of the twelve-month period, so far from bringing that obligation to an end, had the effect of making definite  (subject always to the appellant’s third submission) what had previously been increasingly probable, that is that he would be in a state of non-compliance on 24 August, 2000.  The statement had effect (by paragraph 4) until 24 November, 2000, and their Lordships can see no basis for accepting the submission that the non-compliance came to an end on 24 August, 2000, at any rate so long as the statement of requirements continued to have effect (their Lordships need not express any view as to what the position would have been if the case co-ordinator had not written her letter until after 24 November, 2000).  The appellant’s proposed construction would put far too much weight on the present tense (“is failing”), especially as the non-compliance was in the nature of a continuing breach, and that construction would produce a most improbable and unsatisfactory result.

37. 	On this point Mr Hendy relied on the decision of the Board in an appeal from the Supreme Court of Ceylon, Board of Trustees of the Maradana Mosque v Badiuddin Mahmud [1967] AC 13. In that case a school’s failure to pay teachers’ salaries had been remedied, with the consequence that the Minister of Education could not be satisfied that the school (in the words of the relevant statute) “is being administered in contravention of any of the provisions of this Act”.  But the case does not assist the appellant.  Mr Havers was right in submitting that there is in this context a most material distinction between a continuing, unremedied breach of obligation and a past, remedied breach.

38. 	As to Mr Hendy’s third submission (that the termination of the appellant’s retraining resulted from causes beyond his control) it might be said that the immediate cause of the termination was the appellant’s most unfortunate error in the course of the operation which he carried out on 9 August, 2000.  But their Lordships would not wish to base their conclusion on that narrow ground. They are prepared to accept that the appellant did all he could to achieve effective retraining, and that the very unfortunate delay in starting the retraining is not his fault.  But (whether in legal language or in everyday speech) failure does not always imply fault, and their Lordships are satisfied that in this context it should not be taken as implying fault.  The purpose of all the provisions is to protect the public from sub-standard medical care, not to punish practitioners for blameworthy acts or omissions.  The appellant was most unfortunate in the long delay in the commencement, and the abrupt termination of his retraining.  But the fact is that he had not complied with the statement of requirements. In the circumstances the case co-ordinator really had no sensible alternative but to refer the case to the CPP. 

39. 	In their Lordships’ view the legal assessor was therefore correct in advising the CPP that it had jurisdiction to proceed with the hearing, but he was at least partly incorrect in the reasons for his advice.  It is not necessary to consider the validity of the ground on which the legal assessor did rely.  As the point went to jurisdiction and not to the exercise of any discretion by the CPP, the legal assessor’s error does not in any way invalidate the proceedings.

Assessment and Adjudication on Performance
40. 	Before considering the remaining grounds of appeal their Lordships think it right to make some general observations (especially in the light of Krippendorf) as to the procedure that was followed in this case, and more generally as to what should be the relationship between assessment by an assessment panel and adjudication (at a performance hearing) by the CPP.  

41. 	In this case the assessment panel made its report before the delivery of the Board’s opinion in Krippendorf.  The report did not therefore concentrate on the five surgical cases identified by the South Devon Trust’s medical director in his letter dated 17 February, 1998 (and documented in the material sent with the letter).  Instead the report relied heavily on interviews, especially interviews with staff of differing levels of seniority at Torbay Hospital. The appellant did not have the opportunity of challenging this material (which has been referred to as “the third party interviews”) during the preparation of the assessment panel’s report.  The appellant did not obtain copies of transcripts of the third party interviews until 19 October 2001, when the hearing before the CPP was pending. 

42. 	By the time of the hearing before the CPP, by contrast, the Krippendorf case was well known.  Their Lordships were told that although it was not specifically mentioned during the early stages of the hearing, it must have been well in mind so far as the CPP and the parties’ advisers were concerned.  Miss Foster (appearing for the GMC) took her decision to call only two witnesses (Mr Walker, the lead assessor, and Mr Vyas, the consultant who was concerned with case A) in the light of it.  Nevertheless the hearing was likely to be protracted (as Miss Foster correctly predicted) since the index cases were going to be subjected to close examination in the course of the oral evidence.

43. 	When the legal assessor came to give his advice on the fifteenth day, after advising on the jurisdiction point, he referred to the Krippendorf case and to the assessment panel’s report in this case.  He identified five principal errors in the panel’s procedure, some of which had a parallel in Krippendorf and some of which did not:

(1)	the panel did not distinguish between competence and past performance;  

(2)	the panel did not subject the index cases to detailed scrutiny;

(3)	the panel took the appellant’s ‘portfolio’ into account to some extent;

(4)	the loss of confidence by colleagues in the appellant was not a finding relating to his own professional performance;

(5)	the appellant had no opportunity of challenging the third party interviews on which the report relied and there were both procedural and practical objections to the appellant calling the third parties as his own witnesses.

44. 	The legal assessor went on to advise the CPP not to rely on the contents or conclusions of the assessment panel’s report or on anything adverse to the appellant in the third party interviews.  He advised that they could rely on anything advantageous to the appellant, or anything uncontentious.  The result was that the index cases were examined in great detail in the course of the evidence of Mr Vyas, Mr Walker (the lead assessor), the appellant and his two expert witnesses, Mr McGarry and Professor Tindall.  There was also oral evidence from Dr Broomhall (the medical director of the South Devon Trust, who was in the position of complainant), from Mr Stannard (the appellant’s mentor in 1997) and from Mr Barrington (the consultant called in to assist in index cases 2 and 5; he was called as a witness by the CPP itself and gave evidence at a resumed hearing on 24 June, 2002, the fourteenth day).  

45. 	In this case the effect of the legal assessor’s last-mentioned advice (which their Lordships do not criticise) was to render inadmissible (and therefore useless for the purposes of a performance hearing) a great deal of the work conscientiously undertaken by the assessment panel.  Instead the index cases had to be examined afresh, at great trouble and expense, at the CPP hearing.  Their Lordships understand that there are now no more pre-Krippendorf cases in the pipeline, so this unsatisfactory sequence of events is unlikely to be repeated.  But their Lordships think it right to reiterate that the process of assessment involves not only the examination of past performance but also assessment and planning (in all but the worse cases) for improvement and rehabilitation.  Many assessments and statements of requirements lead to a satisfactory outcome, and a formal hearing before the CPP proves to be unnecessary.  Their Lordships do not wish to send out a message that assessment by an assessment panel should be regarded as solely, or even primarily, designed as a process of collecting evidence in order to establish a prima facie case against a practitioner. Where a formal hearing before the CPP is unavoidable parts of the assessment panel’s report may still be inapposite to the determination of the first question that the CPP has to decide;  but the whole report is likely to be relevant to the subsequent issue of disposal if it arises.

The four index cases
46. 	Index cases 1,2,5 and A (together with cases 3 and 4 on which the CPP did not make adverse findings) were the subject of a great deal of detailed evidence given to the CPP by the witnesses mentioned above.  They have also been the subject of detailed written submissions to their Lordships, developed in oral argument so far as time allowed.  Their Lordships have carefully considered all these written and oral submissions but do not think it appropriate to comment on them at greater length than is necessary in order to determine the second ground of appeal.

47. 	Index case 1 concerned an operation performed on 24 July, 1997.  The patient was Mrs C (then aged 50).  The operation was expected to be a full vaginal hysterectomy, but the patient had been told that because of the possibility of complications it might be performed abdominally.  When during the operation a fairly large ovarian cyst was found the appellant decided to continue with the operation and remove the cyst vaginally.  The patient developed a haematoma which became infected.  The criticisms of the appellant were for omitting a pre-operative examination under anaesthetic; for his decision to remove the cyst, when found, vaginally;  and for his post-operative care, including daily wash-outs which the patient found distressing.  The specialist adviser commented on this case that the patient should have had a pre-operative examination.  He also said,
“I have never seen or heard of an ovarian cyst being removed vaginally.  There are, of course, accounts of this having been done.  My feeling was that, of all the possible ways around – which I will not go through again – dealing with an unsuspected ovarian cyst found in this way, that to attempt this operation is certainly quite complicated, would demand the assistance of at least one or two helpers, registrars, in theatre, and to my mind is actually quite a difficult undertaking performed vaginally.”
48. 	The CPP found that the appellant’s decision to perform a vaginal ovarian cystectomy was a major error of judgment, which might have caused the subsequent pelvic haematoma and abscess. They were satisfied that vaginal ovarian cystectomy is rarely, if ever, performed in this country.  Mr Hendy submitted that the evidence went no further than establishing that the operation was unwise, and that it did not justify a finding of serious error of judgment. But the evidence on both sides was that vaginal cystectomy had become very unusual and, if undertaken at all, should be undertaken only by highly-trained specialists. The appellant was not such a specialist.  The CPP’s conclusions were amply justified by the evidence.  

49. 	Index case 2 concerned an operation performed on 7 August, 1999.  The patient was Mrs H (aged 37). The operation was expected to be a routine operation with no abnormal features, and no abnormality was found.  But the patient suffered very serious bleeding and had to be returned to theatre about 45 minutes after the operation. About 20 minutes later, at about 6 p.m., Mr Barrington (a junior colleague of the appellant) was asked to come in and assist.  According to Mr Barrington when he arrived the appellant was considering whether it was safe to close the abdomen.  Mr Barrington got the impression that the appellant had reached the end of the road in what he could offer the patient.  It was obvious to Mr Barrington that it would not be safe to close the abdomen and he eventually stemmed the bleeding by tying off the right iliac artery.  The specialist adviser’s only advice (as to the adequacy of vaginal sutures) took a view contrary to the views which had been expressed by other witnesses.

50. 	The CPP’s conclusion on the case was as follows:
“The Committee approve of your decision to seek a second opinion but are seriously concerned that you believed that closure of the abdomen might be appropriate when clearly it was not. Furthermore, the Committee are concerned that you did not consider alternative methods of haemostasis, such as packing the pelvis, at a time when blood loss was sufficiently severe to necessitate major blood transfusion.”

51. 	The appellant’s main attack on this conclusion has focused on the first sentence quoted in the last paragraph.  Mr Hendy has argued that the CPP was irrational in basing a finding of seriously deficient performance on the fact that a practitioner merely considered a possible option.  In fact the CPP based its finding of seriously deficient performance on an overall assessment of four index cases (a point to which their Lordships will return).  But in any case this submission takes out of context a single observation (which might have been better expressed).  Reading the whole of the CPP’s observations on index case 2, their Lordships are satisfied that the CPP must have concluded, after hearing the evidence of both the appellant and Mr Barrington, that the appellant was out of his depth and needed help (as it happened, from a junior colleague).  His performance was not that of a skilled consultant accustomed to taking responsibility.  A passage in Mr Walker’s evidence on this case is most telling:
“So our concerns were – and I am sorry, I hate it when this sounds so harsh – but the reality is we started off with a youngish woman with normal anatomy, anticipating a straightforward procedure, and by later that evening we have someone who has had two laparotomies, a muscle-splitting incision, ligation of the internal iliac artery; and therefore the Panel were concerned that this raised the possibility of an insecure surgical technique.”

The CPP had good reason to take index case 2 into account in reaching their final conclusions.  

52. 	Index case 5 concerned an operation performed on 12 December, 1997 and it was the precipitating cause of the appellant’s suspension by the South Devon Trust.  The patient was Mrs B (then aged 42).  Her operation was thought to be a straightforward total abdominal hysterectomy and bilateral salpingoopherectomy, but after encountering an unexpected difficulty (adhesion of the bladder to the cervix) the appellant decided on a subtotal hysterectomy.  He finished the operation at about 6 p.m.  After a considerable delay on the ward (which was in no way the appellant’s fault) the patient was recognised as having serious post-operative bleeding.  Mr Barrington was phoned at 4 a.m. and operated after the patient had been returned to theatre, at about 6 a.m.  He tied off the patient’s left iliac artery.  The appellant was in attendance by the end of the operation.  The criticisms of the appellant were of his decision to perform a subtotal hysterectomy and of his treatment to stop the patient’s bleeding.  The specialist adviser was critical of his method of suturing the stump of the patient’s cervix, stating that he had never heard of it being closed from side to side.

53. 	The CPP’s finding was as follows:
“the Committee do not criticise your decision to perform a subtotal hysterectomy in such circumstances.  However, they are seriously concerned that your closure of the cervical stump was unorthodox and inappropriate and did not accord with accepted practice.  The Committee take the view that this departure from safe surgical practice put the patient at high risk of post-operative bleeding.”

54. 	Mr Hendy has attacked this conclusion as expressed in extreme language and as one which no reasonable tribunal could have reached.  He has submitted that it must have been based on the advice of the specialist adviser, since none of the medical witnesses criticised the method of closure.  Their Lordships will come back to the role of the specialist adviser (whose advice on this point was initially given to the CPP in camera, and reported to the hearing immediately before the CPP retired for their final deliberations).  At this stage it is sufficient for their Lordships to state their view that the evidence did not justify the CPP’s conclusion that the appellant’s method of closure was unorthodox, especially as the specialist adviser’s view had not been put to the appellant in cross-examination.  But as with index case 2, their Lordships feel that criticism, however cogent, of the language chosen by the CPP in which to express their findings (after a hearing lasting 15 days) must not shut out a broader view of the investigation on which the CPP were engaged.  The fact is that this was the appellant’s second return to theatre for serious post-operative bleeding, in an apparently straightforward operation, within a matter of months;  and what the CPP were concerned with was (as the Board emphasised in Krippendorf) “track record” – that is, actual past performance. 

55. 	Again, the point was put tellingly by Mr Walker in his evidence in chief:
“I think this is what one is looking for, for this pattern of performance, that here is another patient now who has undergone what one would have anticipated being a straightforward operation, no adhesions in the pelvis, no pathology, potential problem with the bladder avoided by not doing the total abdominal hysterectomy, the easier option selected, has had to return to theatre because of major bleeding and has finished up having extensive surgery, including the removal of her ovaries in this particular situation, and admission to ITU.  So you are looking for a pattern of performance surgically.  She must have bled, because something happened, and the something that happened, I think one has to assume, was related to the surgical technical technique and the performance of the operation.”

Their Lordships are satisfied that the CPP were entitled to take index case 5 into account in reaching their final conclusions, and their use of the word “unorthodox”, although unfortunate, cannot be taken as an indication that they seriously misunderstood the evidence or failed to take account of all the evidence bearing on the appellant’s professional performance. 

56. 	Case A concerned the operation at Bristol on 9 August, 2000 which resulted in the termination of the appellant’s retraining.  The patient was Mrs X (post-menopausal, age not disclosed). The appellant was supposed to be operating under the supervision of Mr Vyas, although the latter said that he saw himself as an observer rather than a supervisor.  The patient was to have a total abdominal hysterectomy.  After the operation had begun she was found to have enlarged ovaries and adhesions.  The appellant proceeded with the operation but after a time Mr Vyas intervened. He found that the right ureter had been tied and cut.  The appellant was criticised for this accidental damage, said to have been caused by faulty technique in identifying the patient’s ureters.  The specialist adviser’s advice on this case was limited to mentioning some statistics (which have been challenged) for the incidence of uretic damage in non-malignant total abdominal hysterectomies. 

57. 	The CPP considered that the fact that the appellant was operating under supervision did not obviate his responsibility for his own performance.  It accepted the criticism of the appellant’s technique.  So far as the question of responsibility is a question of law, their Lordships consider that the CPP was clearly right.  As to the CPP’s findings of fact, there was sufficient evidence to justify their conclusion.  The appellant could point to a large number of mitigating factors, and Mr Hendy has eloquently drawn them to the attention of their Lordships.  But the CPP was concerned with actual performance, not with blameworthiness. 

58. 	The CPP expressed their overall conclusions as follows:
“The Committee find that in Index Cases 1, 2 and 5, and in Case A, you did not meet the professional standard appropriate to the work you were doing.  The Committee are sure that these cases disclosed deficiencies in your surgical practise and that these deficiencies, whether considered individually or cumulatively, were serious.  Each of them discloses a worrying reliance upon unsafe surgical techniques which form no part of the normal practise followed at the relevant time by surgeons in this country.”

The second and third grounds of appeal: What was the GMC’s case, and was it made out?
59. 	Having identified the four specific cases on which the CPP made adverse findings, and having expressed their views in summary form on those cases as individual cases, their Lordships think it right to stand back and consider the course of the hearing as a whole before setting out their conclusions on the second and third grounds of appeal.

60. 	Although Miss Foster did not refer to Krippendorf  in her opening, it is clear that she had it in mind.  She warned the CPP that it would be an unusually long hearing because the five original index cases, and case A, were going to be closely examined in oral evidence.  They were the core of the GMC’s case, as she made clear.  The legal assessor’s advice about disregarding the third party interviews, although not given until the fifteenth day of the hearing, cannot have come as a great surprise to anyone.  Their Lordships cannot accept Mr Hendy’s submission that the CPP was in error, after having heard the legal assessor’s advice, in proceeding to reach a decision.  They had by then painstakingly heard many days of oral evidence which examined the particular instances relied on by the GMC.  The CPP did take account of parts of the assessment panel’s report which were favourable to the appellant.  

61. 	In her opening Miss Foster (no doubt having in mind the GMC’s published guidance) referred to the pattern of seriously deficient performance on the appellant’s part which she sought to establish.  Mr Hendy submitted that no such pattern had been established.  He also submitted that none of the four cases on which the CPP made adverse findings had been clearly proved to amount to a grave error on the part of the appellant. 

62. 	Although in Krippendorf the Board did not criticise the phrase “repeatedly or persistently” in the GMC’s guidance, it is important to bear in mind that that guidance is a generalisation seeking to cover a very wide range of professional performance. The professional demands made on a general practitioner are very different from those made on a consultant surgeon.  A continuing failure to organise the efficient management of a general practice may (in a sufficiently bad case) amount to seriously deficient performance, but in the nature of things it must be assessed on very different evidence from that relating to shortcomings of technique in major surgery.  It would plainly be contrary to the public interest if a sub-standard surgeon could not be dealt with by the CPP unless and until he had repeatedly made the same error in the course of similar operations.  But as a general rule the GMC should not (and their Lordships have no reason to suppose they would) seek to aggregate a number of totally dissimilar incidents and alleged shortcomings in order to make out a case of seriously deficient performance against any practitioner.  

63. 	At some points in his submissions Mr Hendy referred to tortious liability for negligence, suggesting that seriously deficient performance must be at least as serious as negligence. Their Lordships do not consider negligence to be a relevant or useful concept at a performance hearing before the CPP.  Negligence is concerned with compensating loss proved to have been caused by a breach of a practitioner’s duty of care.  Seriously deficient performance is a much wider concept since (as already mentioned) it can extend to such matters as poor record-keeping, poor maintenance of professional obligations of confidentiality, or even deficiencies (if serious and persistent) in consideration and courtesy towards patients.  It does not depend on proof of causation of actionable loss.  (On the other hand one isolated error of judgment by a surgeon might give rise to liability in negligence but would be unlikely, unless very serious indeed, to amount by itself to seriously deficient performance.)

64. 	Mr Hendy submitted that the specialist adviser went outside his proper function in offering his own experience and views to the CPP, almost as if he were giving evidence.  Mr Hendy referred on this point to Richardson v Redpath Brown & Co Ltd [1944] AC 62 where Viscount Simon LC said of a medical assessor appointed under the Workmen’s Compensation Acts (at pages 70-71), 
“But to treat a medical assessor, or indeed any assessor, as though he were an unsworn witness in the special confidence of the judge, whose testimony cannot be challenged by cross-examination and perhaps cannot even be fully appreciated by the parties until judgment is given, is to misunderstand what the true functions of an assessor are.  He is an expert available for the judge to consult if the judge requires assistance in understanding the effect and meaning of technical evidence.  He may, in proper cases, suggest to the judge questions which the judge himself might put to an expert witness with a view to testing the witness’s view or to making plain his meaning.  The judge may consult him in case of need as to the proper technical inferences to be drawn from proved facts, or as to the extent of the difference between apparently contradictory conclusions in the expert field … But I cannot agree that [giving evidence] is within the scope of an assessor’s legitimate contribution.”

65. 	In performance hearings before the CPP the Rules make more detailed provision as to the specialist adviser’s function than was the case under the Workmen’s Compensation Acts.  Schedule 1, paragraph 8(6) and (7) of the Rules provide as follows:
“(6)  The specialist adviser shall advise the Committee on the medical issues before the Committee and shall do so – 
(a)	on any question referred to him by the Committee; and 

(b)	of their own motion if it appears to him that, but for such advice, there is a possibility of a mistake being made (i) in judging the medical significance of any information before the Committee, or (ii) because of an absence of information before the Committee. 

(7)  The advice of the specialist adviser shall be given in the presence of the practitioner and his representative if they appear at the hearing or, if the advice is given after the Committee have begun to deliberate as to their findings the practitioner shall be informed what advice the specialist adviser has given to the Committee.”

66. 	What occurred in the course of the hearing appears to their Lordships not to have gone beyond what was authorised by the Rules.  In a case where the CPP had the benefit of many highly-qualified witnesses who were examined and cross-examined at length it was a matter for the specialist adviser’s judgment whether to express views (on suturing in index case 2, and on the stump closure in index case 5) which cut across (rather than explaining or supplementing) the evidence of the other experts. If he thought it right to do so it might have been better to have done so at an earlier stage in the hearing, so that his views could be put to the expert witnesses for their comment.  It would also have been better if the chairman, on reporting what the specialist adviser had said after the CPP’s retirement, had expressly invited the appellant’s representative to comment if he wished to do so (since that is of course the purpose of the requirement for the advice to be disclosed).

67. 	Their Lordships must now state their conclusions on the second and third grounds of appeal.  The overall aim of Mr Hendy’s skilful submissions was to criticise the CPP’s detailed findings on the individual incidents, and then to suggest that, taken together, they did not amount to a pattern of seriously deficient performance.  He attacked the chairman’s finding that there was 
“a pattern of seriously deficient performance, exemplified by these cases.”

Mr Hendy said that there was nothing other than index cases 1, 2, and 5 and case A from which the CPP could extract a pattern, and that the cases did not display a pattern at all. 

68. 	Their Lordships must reject these submissions.  They do not consider that the word “exemplified” has been shown to have been mistaken.  By the sixteenth day of the hearing the CPP had heard a good deal of evidence (including evidence from the appellant himself) about his professional performance since 1 July, 1997, apart from the four operations on which they made adverse findings.  Their Lordships do not see anything irregular or unfair in the way in which the CPP approached its task, or in its continuing the hearing after the legal assessor’s advice.  Nor (subject to the points already mentioned, which cannot be determinative) do their Lordships see any reason to regard as unsafe either the CPP’s conclusions on the individual incidents or their overall conclusions.  The second and third grounds of appeal must fail.  

The fourth ground of appeal:  Standard of proof
69. 	In advising the CPP in Krippendorf the legal assessor said (towards the end of a fairly lengthy passage quoted by the Board at [2001] 1 WLR1054, 1066),
“The burden of proving sufficiently deficient performance rests on the Council throughout, as is conceded, and you should not make such a finding unless you are sure on the evidence that such was the case.”

Basing himself on this Mr Hendy has submitted that the GMC had to prove its case beyond reasonable doubt, that is to the standard of proof required on the trial of a criminal charge, and that the CPP could not have been satisfied to that stringent standard.  It is accepted that Miss Foster opened the case to the CPP on that basis, and the legal assessor advised the CPP (without further elaboration) that they had to be sure that serious and persistent deficiencies on the appellant’s part had been proved.

70. 	Mr Havers has not sought, for the purposes of disposing of this appeal, to put forward any less stringent standard.  But he has asked the Board to give guidance for future cases.  There are therefore two questions to be considered.  Could the CPP have been satisfied to the equivalent of the criminal standard of proof in this case?  And (if it is appropriate for their Lordships to express a view) is that the correct test to be applied at a performance hearing?

71. 	In this case the CPP were advised that they must be sure about their findings.  The chairman’s brief statement of their findings (which was not, and was not intended to be, a full reasoned judgment: see Libman v General Medical Council [1972] AC 217, 221) shows that the CPP had before it, and considered, a large volume of oral and documentary evidence (including medical records) about the appellant’s performance as a surgeon since 1 July, 1997.  They expressed themselves satisfied, after careful consideration, as to their conclusions.  With the single exception of the description of the closure mentioned in index case 5 as “unorthodox” (which cannot affect the CPP’s overall conclusion, for reasons already mentioned) their Lordships see no reason to question any of these conclusions.  Their Lordships must reject Mr Hendy’s submission that no reasonable tribunal could, on the evidence before it, have reached those conclusions beyond reasonable doubt.

72. 	In Krippendorf the Board said nothing about the standard of proof which forms part of the principle of the decision.  Their Lordships very much doubt whether the Board, in saying that the legal assessor’s advice was correct “so far as it went” intended to say anything about the standard of proof (since the point seems to have been conceded, and not the subject of any argument).  Their Lordships have nevertheless felt some doubt about expressing views, which will necessarily have no binding force, as to the appropriate standard of proof in performance cases.  But having heard argument, and recognising that the point is of considerable practical importance, their Lordships think it right to say something on the point.
73. 	The function of the CPP is not penal.  It is to protect the public and to rehabilitate (if possible) practitioners whose professional standards have fallen too low.  In the first of its tasks (that is deciding whether the standard of a practitioner’s performance has been seriously deficient) the CPP has to ascertain the primary facts (which in many cases may not be seriously in doubt) and then to exercise their judgment (in the case of some but not all the members of the CPP, their professional judgment as experienced doctors).  In this exercise the standard of proof of the primary facts ought not, in the generality of cases, to be an issue which gives rise to much difficulty.  So far as it is a material issue the standard should in their Lordships’ view, in the generality of cases, be the ordinary civil standard of proof.  There may be exceptional cases (probably cases in which the practitioner is fortunate to be facing the CPP rather than the Professional Conduct Committee) in which a heightened civil standard might be appropriate, as explained by the House of Lords in re H(minors) (sexual abuse: standard of proof) [1996] AC 563.

74. 	Their Lordships do not think it prudent to try to go further in giving guidance, except to echo what was said by the Board in McAllister v General Medical Council [1993] AC 388, 399, 
“In charges brought against a doctor where the events giving rise to the charges would also found serious criminal charges it may be appropriate that the onus and standards of proof should be those applicable to a criminal trial.  However there will be many cases, where the charges which a doctor has to face before the committee could not be the subject of serious or any criminal charges at all.  The committee is composed entirely of medical men and women learned in their profession and to require that every charge of professional misconduct has to be proved to them just as though they were a jury of laymen is, in their Lordships’ view, neither necessary nor desirable.  What is of prime importance is that the charge and the conduct of the proceedings should be fair to the doctor in question in all respects.”

That passage is not wholly apposite to a committee which must now have at least one lay member. But subject to that qualification, the passage applies still more strongly to a hearing before the CPP than to a hearing before the Professional Conduct Committee.

The fifth ground of appeal:  Bias
75. 	A practitioner whose professional performance is called into question before the CPP is entitled to a hearing by a tribunal free from actual or apparent bias (which is to be judged by the test laid down by the House of Lords in Porter v Magill [2002] AC 357, 491-5).  The practitioner is also entitled to such further protection as may be afforded by article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, since the hearing involves the determination of his or her civil rights: Ghosh v General Medical Council [2001] 1 WLR 1915, 1922. In that case Lord Millett, giving the opinion of the Board, stated that
“Such protection requires either that the decision-making body (in this case the committee) constitute an independent and impartial tribunal or, if not, that its processes be subject to control by an appellate body with full jurisdiction to reverse its direction.”

76.	Mr Hendy submitted that in this case the GMC acted as prosecutor, judge and jury, so as to create an appearance of bias. He relied on the fact that the CPP, like the Professional Conduct Committee, has until recently consisted entirely of members of the GMC, and that still the majority of those serving on CPP panels are GMC members.

77.	There is no general principle of Convention jurisprudence which prevents professional self-regulation: see Albert and Le Compte v Belgium (1983) 5 EHRR 533 especially at pages 541-542, paragraph 29. Whether a tribunal satisfies the requirements of article 6 depends on all the relevant circumstances, including how the members of the tribunal are appointed, their tenure of office, their protection from outside pressure and their apparent independence (as evidenced by their standing and procedure): see Bryan v United Kingdom (1995) 21 EHRR 342, especially at page 358, paragraph 37.

78.	Mr Havers has made full written submissions as to the independence and impartiality of the CPP.  These submissions were based partly on the General Medical Council (Constitution of Fitness to Practise Committees) Rules Order in Council 1996, as amended (“the Constitution Rules”).  The CPP must always have at least one lay member (Rule 7(5) of the Constitution Rules). Its members (if elected members of the GMC) hold office for a fixed term and are eligible for re-election (Rule 8(2) and (4) of the Constitution Rules).  No member of the CPP may be involved in other aspects of the GMC’s functions in relation to fitness to practise (Rules 11(1) and 12 of the Constitution Rules). There are many procedural safeguards to ensure a fair hearing, free from outside pressures: the practitioner has the right to legal representation  (paragraph 7(2) of Schedule 1 to the Rules); the practitioner may call witnesses and cross-examine the GMC’s witnesses (paragraph 9(1) of Schedule 3 to the Rules); the hearing will be in public if the practitioner requests (paragraph 3(2) of Schedule 3 to the Rules); and the hearing must be attended by a legal assessor to advise the CPP (paragraph 7(1) of Schedule 4 to the 1983 Act).

79.	Mr Hendy did not challenge these points.  Nor did he rely on any matter evincing actual or apparent bias other than the bare fact that the CPP was constituted by medical and lay members of the GMC.  Their Lordships are satisfied that the CPP did meet the tests laid down in Albert and le Compte and Bryan.

80.	In these circumstances it is not necessary to consider whether the Board’s jurisdiction, although limited to an appeal on a question of law, constitutes full jurisdiction in the Convention sense.  But in view of the generous interpretation which the Board gives to its jurisdiction (see Stefan v General Medical Council, referred to at paragraph 11 above) their Lordships incline to the view that the Board has full jurisdiction in the sense described by Lord Hoffmann in R (Alconbury Developments Limited) v  Secretary of State for the Environment, Transport and the Regions [2001] 2 WLR 1389 at page 1416, paragraph 87, “jurisdiction to deal with the case as the nature of the decision requires”.

Conclusion
81.	Having been taken through the whole of this unhappy matter at considerable length, their Lordships are left with a good deal of sympathy for the appellant.  They were told that he no longer wishes to practise as a surgeon, whatever the outcome of the appeal, and that his real concern is with the stigma which he perceives as resulting from the CPP’s adverse finding against him. Their Lordships express the hope that the appellant will now be able to put the whole matter behind him as quickly as possible. But for reasons given above their Lordships will humbly advise Her Majesty that the appeal should be dismissed with costs.