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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Neath Port Talbot Local Health Board v Gilbey [2009] EWHC 1573 (Admin) (03 July 2009) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2009/1573.html Cite as: [2009] EWHC 1573 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
SWANSEA DISTRICT REGISTRY
ADMINISTRATIVE COURT

		Cardiff Civil Justice Centre 2 Park Street Cardiff
		03/07/2009

Mr Justice Wyn Williams :

1. The Appellant is a Local Health Board ("LHB") established by the Welsh Ministers under section 11 of the NHS (Wales) Act 2006. By virtue of Regulation 3(1) of the National Health Service (Performance List) (Wales) Regulations 2004 ("the Regulations") a LHB has a duty to prepare and publish a medical performers list. It is common ground that a healthcare professional, such as a GP, shall not perform any primary medical service for a LHB unless he/she is included upon the medical performers list.
2. In certain circumstances a LHB has the power to remove a GP from the performers list. In particular it may remove a GP from the list if his/her continued inclusion on the list would be prejudicial to the efficiency of the services which those included in the performers list are expected to provide – see Regulation 10(4). In the Regulations removal for this reason is known as an efficiency case.
3. Regulation 11 lays down criteria which must be taken into consideration when an LHB is considering whether to remove a performer from its performers list. In an efficiency case the relevant criteria are laid down in Regulation 11(6) – as to which see below.
4. The Regulations also recognise a concept known as contingent removal. Contingent removals are the subject of Regulation 12. That regulation provides:-

"(1) In an efficiency case …………… the Local Health Board may, instead of deciding to remove a performer from its performers list, decide to remove the performer contingently.

(2) If it so decides, it must impose such conditions as it may decide on the inclusion of the performer in its performers list with a view to –

(a) removing any prejudice to the efficiency of the service in question ….."

5. By letter dated 10 June 2008 the Appellant informed the Respondent that it had decided to remove his name from the Neath Port Talbot Local Health Board medical performers list. As was his right, by virtue of Regulation 15, the Respondent appealed against that decision to the Family Health Services Appeal Authority ("FHSAA"). On 8 December 2008 the panel of FHSAA which had been appointed to hear the Respondent's appeal ("the panel") published its decision upon the Respondent's appeal. It decided that the Respondent should be contingently removed from the medical performers list subject to four conditions. In the remainder of this judgment this decision will be referred to as "the first decision."
6. On 25 February 2009 the Respondent applied to the panel to vary the conditions it had imposed in its first decision. On 30 March 2009 the panel published a decision which, in effect, acceded, at least in part, to the application made for variation. Henceforth this decision will be referred to as the "second decision."
7. Within the relevant time scale the Appellant appealed to this Court against the second decision. Thereafter and in circumstances I will describe more fully, below, the panel published a third decision dated 15 May 2009 (the "third decision"). The effect of that decision was to delete one of the conditions imposed by the second decision and substitute a different one.
8. The parties to an appeal before FHSAA have a right of appeal to this Court by virtue of the Tribunals and Enquiries Act 1992. It is common ground that such an appeal is limited to questions of law only. CPR 52.19(1) provides for a right of appeal if a party "is dissatisfied in point of law".
9. Before examining the grounds upon which the Appellant alleges that the panel erred in law it is necessary to set out, in a little detail, the relevant factual background and important extracts from the first and second decisions of the panel.

Relevant Factual Background.

10. The Respondent is a GP of many years experience. There can be no doubt that he has commanded and still commands considerable respect from some, perhaps many, of his patients. Unfortunately such respect is not universal.
11. By a letter dated 3 July 2006, the Home Manager of an institution known as the Cwrt Enfys Care Home sent a letter of complaint to Ms Gill Todd, the Medical Officer to Powys Local Health Board. In summary the complaint related to some of the clinical practices and alleged lack of understanding and care of the Respondent towards elderly clients of the home. Although the letter was written to the Medical Officer of Powys Local Health Board it was the Appellant which began an investigation of the complaint.
12. On 25 September 2006, a Performance Panel convened by the Appellant considered what course of action should be taken in respect of the complaints. It concluded that an organisation known as the National Clinical Assessment Service ("NCAS") should become involved.
13. By letter dated 27 September 2006 the Appellant informed the Respondent that it intended to involve NCAS. It was anticipated that NCAS would undertake a performance assessment of the Respondent.
14. The Respondent was distressed by the complaints made against him. He disputed their validity. So much is clear from a letter which he wrote to the Appellant's Chief Executive dated 16 October 2006. Nonetheless, as I understand it, the Respondent agreed to an assessment by NCAS. A formal agreement between the Appellant, Respondent and NCAS for an assessment of the Respondent was concluded on 23 March 2007.
15. On 25 September 2007 NCAS issued its final report in relation to the assessment it had undertaken upon the Respondent. The report was very detailed. It contained a number of criticisms of the Respondent although it is correct to observe, also, that it acknowledged that the Respondent's performance as a GP was satisfactory in a number of respects. It is sufficient for the purposes of resolving the issues raised in this appeal to quote from Part D of the report which is headed "Recommendations". Under the heading "Patient Safety" the report made the following recommendations:-

"In order to protect patient safety, considering the recommendations as a whole, Dr Gilbey should not practice independently until he has successfully completed a period of supervised retraining. There should be ongoing monitoring of Dr Gilbey's progress during a supervised period of practice which should be for up to 12 months and possibly longer if there is inadequate progress. On completion of retraining there should be an evaluation of Dr Gilbey's performance against agreed objectives. Dr Gilbey needs to demonstrate that he has met these objectives before any return to work could be considered.

If retraining is unsuccessful or impracticable, the LHB should consider referral of the case to the GMC.

Until this can be agreed Dr Gilbey should not practice unsupervised. The LHB should take the necessary steps to address this."

Under the heading "Proposals for Implementation" the report suggested:-

"Dr Gilbey should be placed with an advanced training practice arranged by the local Deanery. Any placement identified should run for an agreed period of time, with clearly defined objectives, supervision arrangements and an evaluation against the agreed objectives during this period, so that sufficient evidence is available to enable a judgment to be made.

Dr Gilbey should have support from an educational supervisor to review and identify his learning needs in a structured and organised way.

Dr Gilbey should have access to peer support throughout any period of retraining and the LHB or Deanery should assist in the appointment of a mentor.

Dr Gilbey should also have a coach who can assist with

Inter-personal skills including particularly communication, assertiveness, influencing skills and conflict resolution.

Emotional intelligence and management of strong emotions, particularly anger.

Dr Gilbey should review and undertake a reduction in his list size that in conjunction with the LHB, to reduce his current workload. This should include consideration of the recommendations made by WAG in 2002.

Dr Gilbey should introduce a chaperon policy ensuring that those staff who undertake this role are correctly trained."

It is also to be observed that the report also specified that the Appellant should ensure that the recommendation relating to patient safety was addressed as a priority.

16. On 10 January 2008 the Appellant decided to remove the Respondent, contingently, from its performers list. One of the conditions of the contingent removal was that the Respondent could not work as a GP in any practice or other facility other than a named practice where he was to undergo a period of advanced retraining.
17. Shortly thereafter, an arrangement was concluded for the Respondent to work and undergo advanced retraining at a practice in Pontyclun under the supervision of Dr Robinson.
18. By letter dated 28 April 2008 Dr Robinson gave notice to the appropriate authorities that it had become necessary to terminate the Respondent's attachment to his practice. The letter continued:-

"My initial optimism about the possibilities for his assignment here, have been sadly misplaced. He did improve initially to an extent but quickly reverted to previous behaviour at the earliest opportunity. His biggest problem I feel is a total lack of self-understanding and a complete inability to communicate with colleagues, staff and to a lesser extent, patients in an effective and respectful manner.

The extent to which he upsets virtually every member of this practice is extraordinary. A rare skill, unfortunately, we could not find the antidote. I echo my colleague's reports which are attached and I would hope that somebody somewhere can help him, but I frankly do not envy their task."

19. On 9 June 2008 the Appellant convened a List Management/ Probity panel. The panel consisted of a number of doctors and lay members. The Respondent attended the meeting of the panel. The panel decided to remove the Respondent from the Appellant's medical performers list. It communicated that decision to the Respondent by the letter of 10 June 2008 to which I have referred. They did so, essentially, because the advanced training at the practice in Pontyclun had been terminated and that such termination had been brought about by the Respondent's actions and behaviour.
20. As I have said the Respondent appealed to FHSAA against his removal from the performers list. It is to the decisions made by the panel of FHSAA and the reasons for such decisions that I next turn.

The decisions of the panel

21. The panel published its decision on the Respondent's appeal on 8 December 2008. This followed a hearing which took place on four consecutive days between 1 and 4 December 2008. The panel hearing the appeal acted with commendable speed in publishing its decision. Its decision was in the following terms:-

"91. Accordingly we decided that Dr Gilbey should be contingently removed from the LHB's Performers' List subject to the following conditions:

(a) he shall not from the date of this decision work in any capacity as a NHS General Practitioner except under the supervision of a workplace supervisor who shall be a GP trainer accredited by the Postgraduate Medical and Dental School of Cardiff University ("the Deanery") and approved by Neath Port Talbot Local Health Board and this condition shall remain in force until the expiry of a continuous period of six months from the date of any commencement of such work;

(b) he shall not during the period of supervised work under (a) above work for less than 10 sessions (the nature of which shall be agreed between the LHB and the Deanery) per week except in case of certificated absence through illness;

(c) he shall on or before 31 March 2009 enter into a Service Level Agreement ("SLA") with the Deanery in terms substantially similar to the SLA between him and the Deanery dated 15 January 2008 and will pay the costs of the Advanced Training placement provided that under that Agreement to a limit of £22,000;

(d) the Deanery may in its absolute discretion require Dr Gilbey to submit to it for approval a Personal Development Plan to address the deficiencies in his practice to include the following areas: interpersonal skills, communication skills and consultation skills by 24 April 2009;"

22. No criticism is made of this decision by the Appellant. I note, however, that the Respondent has appealed to this Court against the decision – although that appeal has been stayed.
23. The crucial passages in the reasoning of the panel are contained in paragraphs 81 and 85 to 90 of the written decision. I do not need to quote those paragraphs in full. However, two things are crystal clear. First, the panel was completely satisfied that the Appellant had proved an "efficiency case" against the Respondent (see paragraph 81). Second, the panel was persuaded that the Respondent should be afforded a last chance before being removed form the performers list. This aspect is encapsulated in paragraph 87:-

"Taking all these competing considerations into account and on a very fine balance we have decided that one more attempt should be made to bring Dr Gilbey back into safe, competent, and insightful practice. There is no doubt that the last of these will provide the greatest challenge for all concerned, but particularly Dr Gilbey who should be aware both that whether the process succeeds will be almost entirely his responsibility and that prospect of a further last chance will be vanishingly small."

24. It is common ground that no advanced training placement could be found for the Respondent within the time scales foreshadowed by the conditions set out in paragraph 21 above. Accordingly, on 25 February 2009 the Respondent applied to the panel to review its first decision. The Appellant does not suggest that the panel was not empowered to conduct a review and, in appropriate circumstances, reach conclusions upon the review which were different from those reached in the initial decision.
25. The hearing of the review took place on 27 March 2009. As I understand it, by that date the Respondent had produced a written application setting out the grounds upon which he sought a review and, also, a Service Level Agreement in draft for consideration at the review hearing. The aim of the Respondent, in pursuing a review, was to persuade the panel to delete from the list of conditions the requirement that the Respondent undergo advanced training.
26. Faced with the Respondent's application and the draft Service Level Agreement the Appellant adduced evidence from a number of health service professionals. Essentially, the line taken by the Appellant was that in the absence of advanced training the Respondent should be removed from the list of medical performers.
27. The review hearing took place on 27 March 2009 and the panel produced its second decision. It is a comprehensive document; it sets out in detail the evidence heard and the rival contentions of the parties. The decision of the panel is recorded in paragraph 123. It is necessary to set it out in full.

"Accordingly we decide that Dr Gilbey should be contingently removed from the NHB's Performers' List subject to the following conditions:

(a) he shall not from the date of this decision work in any capacity as a NHS General Practitioner except under the supervision of a named overall supervisor ("the Overall Supervisor") who shall be an accredited GP trainer independent of Dr Gilbey selected by the Clinical Supervisors referred to in condition (c) below on or before 8 May 2009 and this condition shall remain in force until the expiry of a continuous period of six months from the date of any commencement in such work ("the Retraining Period");

(b) he shall not during the Retraining Period work for less than ten sessions per week except in case of certificated absence through illness;

(c) in the first three months of the Retraining Period at least six such sessions shall be patient consultations by Dr Gilbey under direct supervision of one of Dr Eleanor Mair Williams, Dr Mark Goodwin or Dr Alan Stevenson ("the Clinical Supervisors") at Dr Gilbey's practice. At least one complete session of consultations per week shall be recorded and made available for subsequent review by the Overall Supervisor. Two further sessions shall be observation by Dr Gilbey of patient consultations at the practices of one or more of the Clinical Supervisors. One further session shall consist of a review by one of the Clinical Supervisors of a sample of Dr Gilbey's recorded consultations and one shall be devoted to reflective learning;

(d) in the second three months of the Retraining Period Dr Gilbey may, subject to the approval of the Overall Supervisors and after consultation with the Clinical Supervisors and in his or her absolute discretion, undertake some patient consultations without direct supervision provided that all such consultations are recorded and made available to the Clinical Supervisors and the Overall Supervisor for review. Subject to this the ten sessions shall be as in (c) above;

(e) he shall during the Retraining Period undergo not less than six sessions of one hour's duration each with an occupational psychologist who shall as soon as reasonably practicable after the last session write a report and deliver it to Dr Gilbey, the Overall Supervisor and the LHB by 20 November 2009;

(f) he shall on or before 22 May 2009 enter into an Agreement with the Overall Supervisor and the Clinical Supervisors confirming the respective obligations of the parties set out in this decision and these conditions and, subject to the execution of that agreement, the Retraining Period shall begin no later than 1 June 2009;

(g) he should pay all the costs of the training provided under this decision and that agreement without limit and maintain the administrative and clerical staff at his practice at present levels and ensure that there is a total of fifteen clinical sessions conducted there per week;

(h) the Overall Supervisor may in his own absolute discretion require Dr Gilbey to submit for approval by 15 June 2009 a Personal Development Plan to address the deficiencies in his practice to include the following areas: interpersonal skills, communication skills and consultation skills;

(i) he shall be before the end of the Retraining Period submit to an assessment by NCAS to whom all recordings of consultations and reports by the Clinical Supervisors and the occupational psychologist referred to as (h) above shall be sent;

(j) he shall before 20 November 2009 pass the Royal College of General Practitioners' Applied Knowledge Test;

(k) he shall obtain a valid consent in writing to any observation by another doctor of his consultation of any patient, to the recording of any such consultation and to the viewing of any such recording by the Overall Supervisor, the Clinical Supervisors, NCAS and the occupational psychologist referred to at (e) above."

28. As is obvious from a mere glance, the conditions set out immediately above are much different from those which were imposed upon the Respondent by virtue of the first decision. They do not provide for supervision by the Post Graduate Medical School (the Deanery) or the Appellant; they do not provide for advanced training.
29. The conditions attached to the second condition were imposed in the face of fierce opposition from the Appellant. The Appellant's stance at the hearing on 27 March 2009 can be summarised shortly. It argued that the only appropriate conditions were those imposed on 8 December 2008. Since such conditions could not be fulfilled, the Appellant further argued that the only logical, reasonable and proportionate response on the part of the panel should be to order the Respondent's removal from the medical performers list. The Appellant also made it clear that neither the Deanery nor the Appellant was prepared to engage in the process of supervision of the Respondent unless the conditions attached to a contingent removal were similar in type to those imposed in December 2008.
30. The reasoning in support of the decision reached by the panel is set out in paragraphs 105 to 122 of the decision letter. It seems to me that there are a number of key points in that reasoning. First, the panel categorised the case as "highly complex"; it was a case "where the interest of doctor, patients and the LHB needed to be carefully balanced (paragraph 105). Second, the panel was of the view that no advanced training was obtainable for the Respondent and nothing could be done to change that state of affairs. Third, the panel acknowledged that advanced training would afford to the Respondent the best chance to remedy his "embedded problems of behaviour, insight, relationships and judgment" (paragraph 107). Fourth, the panel wished to ensure that the chance which had been afforded to the Respondent, in effect, by the first decision was not automatically removed by virtue of the unavailability of an advanced training placement when the absence of such a placement was not attributable to his conduct.
31. Having identified these considerations amongst others, the panel asked itself the question whether or not a suitable alternative to an advanced training placement could be devised (see paragraph 108). The panel acknowledged that any substitute would be inferior to an advanced training placement and "highly inferior" without the participation of the Deanery and the Appellant (see also paragraph 108). The panel also acknowledged that some of the proposals made by the Respondent might be difficult to bring to fruition e.g. the appointment of an overall supervisor and, in turn, this would lead to difficulty in drafting suitable conditions (paragraph 117).
32. The panel acknowledged, too, that it was necessary to take into account that on 16 January 2009 the Fitness to Practice Directorate of the General Medical Council had imposed a number of conditions upon the Respondent one of which was (condition 5a):-

"He must confine his medical practice to NHS General Practice posts under the supervision of a named GP trainer/supervisor where he will be able to undertake retraining in accordance with the recommendations for retraining identified in the NCAS report dated 25 September 2009" [2009 should read 2007]

33. Having identified and considered the factors set out above together with other issues raised between paragraphs 105 and 120 of its decision letter the panel expressed themselves thus:

"121. In summary, we have considered carefully the need to balance the priority of patient safety against the efficient use of resources (recognising that Dr Gilbey's value as a resource to his practice community must properly be taken into account) and have reflected carefully upon the overall need for fairness and proportionality. We believe that our decision protects patient safety by allowing for direct supervision during the retraining process, and by imposing an authoritative and objective assessment of Dr Gilbey's performance at its conclusion. We believe that the requirement for Dr Gilbey to fund the training process in its entirety, without allowing it to affect the provision of services to his practice community, in combination with the employment of a salaried assistant, to a substantial degree addresses the issue of efficiency of services. Finally we believe that, given that we have previously decided that he should be allowed one more opportunity to redeem himself, it would be unfair to allow that opportunity to fail largely through the interplay of factors outside his control.

122. We are still, again on a fine balance, of the view that Dr Gilbey should have a last chance to remediate himself. We have no doubt that there are, as the LHB maintains, deep-seated problems to be addressed but we believe the effort is worth making provided adequate safeguards are put in place."

34. Following the publication of the second decision a particular issue arose about one of the conditions imposed - condition (i). That condition became the subject of the third decision of the panel published on 15 May 2009. However before that decision was published the Appellant had launched this appeal. In the appeal the Appellant maintains that the third decision does nothing to cure the legal flaws which, it alleges, the decision of 30 March 2009 contains.

The powers of FHSAA on an appeal

35. Appeals to FHSAA are governed by Regulation 15 of the Regulations. On appeal, FHSAA may make any decision which the LHB could have made. Accordingly it was open to the panel to make an order for contingent removal subject to conditions when it made its first decision. Further, by virtue of Regulation 15(6) it was open to the panel to vary those conditions subsequently.
36. Since the conditions imposed related to a contingent removal Regulation 12 demanded that FHSAA should impose conditions with a view to removing prejudice "to the efficiency of the services in question". (Regulation 12(2))
37. Provided the conditions are designed to satisfy the purpose specified in Regulation 12(2) it appears to me that FHSAA (or for that matter a LHB) has a wide discretion as to the nature and type of the conditions to be imposed. I do not understand Mr Hyam, on behalf of the Appellant, to argue to the contrary. However, as in all efficiency cases in which removal from the performers list was being considered, the panel had to take account of the matters specified in Regulation 11(6). That reads:-

"(6) The matters referred to …………are –

(a) the nature of any incident which was prejudicial to the efficiency of the services, which the performer performed;

(b) the length of time since the last incident occurred and since any investigation into it was concluded;

(c) any action taken by any licensing, regulatory or other body, the police or the courts as a result of any such incident;

(d) the nature of the incident and whether there is a likely risk to patients;

(e) whether the performer has ever failed to comply with a request to undertake an assessment by the NCAA;

(f) whether the performer has previously failed to supply information, make a declaration or comply with an undertaking required on inclusion in the list;

(g)………….

(h)…………. "

38. In the light of this short analysis of the powers available to the panel I turn to the alleged errors of law identified by the Appellant. I do so by reference to Mr Hyam's Skeleton Argument and I consider each of the grounds identified in the same order as they appear in the Skeleton.

Grounds of Appeal

39. The first and primary ground of appeal is that the panel erred in law in imposing conditions which were unreasonable, inappropriate and irrational. During the course of his oral submissions Mr Hyam acknowledged that the words unreasonable and irrational were intended to be understood in the sense that those words are used, usually, in public law challenges.
40. As I have said, however, Mr Hyam also submits that the conditions imposed were inappropriate. In a different paragraph of his Skeleton Argument but related to the first ground of appeal he also submits that the conditions were unworkable (see paragraph 22).
41. In the context of this case, at least, I doubt whether the use of the word inappropriate to describe the conditions adds anything to the submission that the decision to impose such conditions was unreasonable or irrational. A separate point, however, does arise in relation to the submission that the conditions were, from the time of their imposition, unworkable. Accordingly, I deal with the issue of whether the conditions were unworkable separately.
42. Mr Hyam makes a number of points in support of his contention that the panel was unreasonable or irrational to impose the package of conditions set out in its second decision. First, he submits that it was irrational to impose conditions which removed from the Appellant and the Deanery any control over the monitoring of the adequacy or effectiveness of the Respondent's training. Second, he submits that no account or proper account was taken of the report of NCAS in September 2007. Third he complains that condition 5a imposed by the General Medical Council on 16 January 2009 (see paragraph 32 above) was not properly understood by FHSAA and/or it failed to take proper account of it. Mr Hyam also raises points about individual conditions, in particular condition (i). As I have said, the condition at (i) was the subject of the third decision of the panel and I will deal with that point, specifically, at the end of my judgment.
43. It is to be observed that the package of conditions was devised by the panel following a contested hearing. The conditions imposed had as their genesis a draft "Service Level Agreement" which had been compiled on behalf of the Respondent in advance of the hearing on 27 March 2009. This document had been produced in support of the Respondent's application for a review of the conditions imposed by the first decision. As I understand it the panel used the draft agreement as the basis for the conditions which it imposed. It is also worth observing, however, that it did not accept, without qualification, the contents of the draft agreement. The conditions represent the considered view of the panel in the light of the Respondent's suggestions as contained in the draft agreement and also in the light of the opposition voiced by the Appellant.
44. So far as I can discern from the written decision Counsel then acting for the Appellant before the panel did not submit to the panel that it would be unlawful to impose a package of conditions such as was ultimately produced. That does not preclude the Appellant from asserting unlawfulness in this appeal but, inevitably, I am bound to ponder why it is that no issue about lawfulness was, apparently, raised in advance of the imposition of the conditions.
45. Inevitably, too, an Appellant who seeks to persuade this Court that a specialist appellate panel has made a decision which is irrational or unreasonable faces a significant hurdle. As Mr Engelman for the Respondent correctly observes, a panel of The FHSAA is usually in the best position to judge the reasonableness of conditions to be attached to a contingent removal; this court should be slow to categorise as irrational or unreasonable a panel's assessment of the relevant facts when it has heard evidence and competing submissions upon it.
46. It is of course correct that the conditions imposed in the second decision contained no requirement that the Appellant and/or the Deanery should be involved in the supervision of the Appellant's work. However the panel clearly recognised that fact and took it into account in reaching its decision. It recognised that the lack of supervision would made the package of conditions inferior to the package imposed on 8 December 2008 – inferior in the sense that they were less likely to achieve the purpose for which they were intended. However, as it seems to me, the panel took the decision that notwithstanding the absence of supervision by the Appellant or the Deanery the package of conditions might still achieve its intended purpose. So much is clear from paragraph 121 of the decision (see paragraph 33 above).
47. I am not persuaded that it is proper to categorise the second decision as irrational or unreasonable on the basis that the conditions imposed made no provision for supervision and/or monitoring on the part of Appellant or the Deanery. In my judgment the panel was entitled to reach the conclusion which it did on this issue.
48. I turn to the consideration afforded by the panel to the NCAS report of September 2007. The terms of the NCAS report were, no doubt, influential in persuading the panel to impose the package of conditions specified in the first decision. As appears from the extract of the report of NCAS set out above (paragraph 15), the need for the Respondent to undergo advance training was at the core of the recommendations made by NCAS.
49. In my judgment it is unrealistic to proceed on the basis that the panel had no regard to this recommendation when it made the second decision. The panel knew full well that the recommendation of NCAS about advanced training could not be achieved. Consequently, it had to make a judgment about whether conditions could be devised and attached to an order for contingent removal notwithstanding the non-availability of advance training.
50. I have reached the conclusion the panel did not fail to take account of the absence of supervision by the Deanery and/or the Appellant; nor did it fail to take account of the recommendations contained in the report of NCAS. Rather the panel exercised its own judgment about these features of the case. Its judgment was that the absence of supervision and the absence of advanced training did not lead, necessarily, to the conclusion that the Respondent should be removed from the performers list. I do not regard the reasoning process which led to that decision as irrational or unreasonable.
51. Mr Hyam's third submission in relation to the first ground of appeal is that the panel failed to appreciate the significance of the GMC condition 5a. He submits, essentially, that the condition imposed by the GMC required that the Respondent should confine his medical practice to posts where he would be able to undertake retraining in accordance with the recommendations made by NCAS in its report of 25 September 2007. In essence, submits Mr Hyam, the requirement imposed by the GMC is that the Respondent can practice only under the constraints imposed by advanced training and that the panel failed to grasp that this was so.
52. Mr Hyam also complains that the panel seem to have focused entirely upon whether the phrase "named GP trainer/supervisor" required the person acting in that capacity to be an advanced trainer as opposed to an accredited GP trainer without considering the context in which the trainer/supervisor was to operate under condition 5a.
53. It seems to me to be clear from paragraph 119 of its decision that the panel did focus upon the issue of whether the condition imposed by the GMC required the Respondent to undergo supervision by an accredited GP trainer as opposed to an advanced trainer as opposed to considering what that phrase was intended to mean in the context of the phraseology of the condition read as a whole. I accept that the meaning of the phrase "a named GP trainer/supervisor" is open to more than one interpretation when read in isolation. However, when the phrase is read in the context of the condition as a whole, it is at least open to very powerful argument that the GMC intended that the trainer or supervisor was properly qualified to supervise advanced training.
54. The panel imposed a condition upon the Respondent which prevented him working in any capacity as a GP except under the supervision of an overall supervisor "who shall be an accredited GP trainer". I understand that the phrase "accredited GP trainer" is a term of art; an accredited GP trainer is not necessarily a person who is qualified to supervise advanced training.
55. A possibility arises, at the very least, therefore, that there is a conflict between the condition imposed upon the Respondent by the GMC and condition (a ) of the conditions imposed by the panel.
56. In paragraph 119 of its second decision the panel makes it clear that it does not wish to impose conditions that may not satisfy the GMC. That said, of course, it does not necessarily follow that the package of conditions imposed by the Respondent would not satisfy the GMC on the next occasion that it considers its own conditions. It is not possible for me to predict what the GMC may resolve in the light of the package of conditions imposed by the second decision. Further, the panel did not act unlawfully simply because its conditions were different from one of the conditions imposed by the GMC. The obligation of the panel was to take account of the condition imposed by GMC (see Regulations 11(5) and (6)(c); it is clear that although the panel did not wish its conditions to conflict with the condition imposed by the GMC, its aim was to afford to the Respondent a last chance. In its view, that aim could be achieved by the imposition of the conditions in question. As it made clear in its third decision, however, it recognised that the GMC might frustrate its aim (see paragraph 14).
57. In any event paragraph 120 of the second decision amounts, in effect, to a suggestion by the panel to the Appellant and Respondent to clarify with the GMC the meaning of its conditions and in particular condition 5a. In the context of this case, in my judgment, that was not a suggestion which was unreasonable or irrational. The plain fact is that if GMC had been asked to provide a view upon the meaning of condition 5a and had it responded by indicating that the Respondent was precluded from practising save to the extent that he was permitted to undergo advanced training under a suitably qualified supervisor or trainer the overwhelming likelihood is that condition (a), as imposed by the panel, would not be performed. No reputable doctor would act as a supervisor or trainer if, so to do, would place the Respondent in breach of a condition imposed upon his registration by the GMC. Conversely, if the GMC had responded by informing the parties that the interpretation of the condition adopted by the panel was correct the current debate would not have arisen.
58. In his oral submissions, particularly in reply, Mr Hyam laid emphasis upon the possibility that the second decision would impact adversely upon the credibility of the advanced training programme. In summary, he submits that attaching conditions to a contingent removal which are intended to be an alternative to advanced training but which are acknowledged to be inferior to advanced training is likely to have the effect of devaluing advanced training as a concept. Mr. Hyam submits that the panel's decision sets a precedent for what he calls untested ad hoc training arrangements. I do not agree. The panel makes it clear that the package of conditions is an inferior alternative to properly supervised advanced training. No one reading the second decision is left in any doubt upon that point. Equally, in my judgment, any reasonable reader of the second decision will appreciate, readily, that the panel was considering very particular factual circumstances – not least the fact that an advanced training placement was unavailable to the Respondent in circumstances beyond his control. In my judgment neither the decision of the panel nor, for that matter, this judgment should be regarded as any kind of precedent save to the very limited extent that the GMC may take the panel's decision into account when it next reviews its own conditions.
59. Mr Hyam deals with what he calls specific problems with the conditions in paragraph 30 to 36 of his Skeleton Argument. With respect to him, save in respect of condition (i) the points he makes in those paragraphs are subsumed within his general submissions about unreasonableness and irrationality as identified above.
60. I turn, therefore, to deal with his submission to the effect that the conditions imposed by the second decision are unworkable. First, it is far from clear to me that a condition or set of conditions is unlawful simply because it or they may be unworkable. Taken at face value, none of the conditions, save possibly, for condition (i) to which I will return, are necessarily unworkable. There is nothing in wording or object of the conditions which makes them inherently unworkable. It seems to me that Mr Hyam's real complaint is not that the conditions are unworkable as a concept but, rather that in practice the conditions would or could not be performed.
61. The FHSAA is given a wide discretion as to the conditions it can impose subject only to the requirement that the conditions must be imposed for the purpose of removing prejudice to the efficiency of the services provided by the medical practitioner in question. I also accept that the conditions must be capable of performance – to hold otherwise would be to drive coach and horses through the requirement that they must be imposed with the aim of removing prejudice to efficiency. However, whether, as a matter of fact, the conditions will be performed cannot, in my judgment, be part of a test of lawfulness. Such a test would require FHSAA (or a LHB for that matter) to delve into matters which it may be impossible to resolve in advance. In my judgment, therefore, once it is accepted that the conditions are capable of being performed questions about whether or not conditions will in fact be performed should not arise provided, of course, that the conditions satisfy the requirement that they should be designed so as to remove prejudice to the efficiency of services.
62. In the instant case it is not suggested that the purpose of the conditions is other than to remove prejudice to the efficiency of services. I appreciate, of course, that the Appellant suggests that the conditions will not as a matter of fact achieve that purpose. However, that was a judgment which the panel was called upon to make and, as I have said the panel was entitled to reach the conclusion which it did on this issue.
63. During the course of the oral submissions a certain amount of debate took place about whether or not the legality of conditions imposed pursuant to Regulation 10 of the Regulations should be judged by reference to a plethora of cases which have arisen upon the legality of conditions attached to planning permissions. Upon reflection I doubt whether such a comparison is a legitimate exercise since the statutory purposes are so different. In any event the planning cases establish that conditions will be lawful if the following criteria are met. First, any condition must be imposed for a planning purpose and not for any ulterior purpose. Second, the condition must fairly and reasonably relate to the development permitted by the planning permission. Third the condition should not be so unreasonable that no reasonable planning authority could have imposed it. It seems to me that if those criteria are the ones by which conditions under Regulation 12 of the Regulations are to be tested the conditions imposed by virtue of the second decision would be held to be lawful.
64. As I have indicated Mr Hyam's first ground of appeal is his primary ground. I have dealt with each of the aspects raised by this ground save for the discreet point as it relates to condition (i). Before dealing with condition (i), however, I should address, shortly, the other grounds of appeal in this case.
65. Ground 2 is an allegation that panel failed properly or at all to take into account the interests of the public when it imposed the conditions which are the subject of the second decision.
66. In my judgment no basis exists for the submission that the panel failed to take into account the interests of the public at all. So much is obvious from the terms of the second decision. It emerges clearly, for example, from the first sentence of paragraph 121 where the panel expressly acknowledges "the priority of patients' safety". In my judgment the panel was in the best position to weight that important consideration against the other considerations which arose in this case. It is impossible to conclude that the weigh which the panel afforded to this important consideration was so far removed from that to be expected from the "reasonable panel" that its decision upon weight can be categorised as unreasonable or irrational.
67. Ground 3 as formulated by Mr Hyam in his Skeleton Argument adds nothing to the points which I have addressed above. Ground 4 raises a particular point about condition (g) which required the Respondent to meet the costs of implementing the conditions. The Appellant raises the prospect that a conflict of interest may arise between the Appellant and his supervisors. I reject that contention. In my judgment the natural and proper assumption is that any doctor undertaking the arduous task of supervising the Respondent will do so objectively and conscientiously.
68. I turn, finally, to the issue which was raised by condition (i) in the second decision. As is clear from the wording of the condition the Respondent was under an obligation to submit to an assessment by NCAS.
69. Following the publication of the second decision it was considered by NCAS. On 14 April 2009 Dr Rosemary Field, the Deputy Director of the NCAS, wrote to the panel to express concern about the form of the condition. Her concerns are set out in paragraphs 6 and 7 of the third decision. She ended her letter by proposing that condition (i) be amended so that it read as follows:-

"Dr Gilbey shall, after four months of the retraining period, submit to an assessment by NCAS, the purpose of which shall be to provide information to the LHB. In making a decision about the next steps in managing the case, the LHB should also consider other information available to it, including reviews of recordings or consultations and reports by the clinical supervisors and the occupational psychologists referred to at (h)."

70. The panel acceded to the request and made the amendment sought. The third decision substitutes condition (i) as drafted by Dr Field for condition (i) as it was drafted in the second decision.
71. The Appellant had the opportunity of making submissions to the panel about the proposed amendment before the panel issued a decision. The Respondent was afforded the same opportunity. It is noteworthy and important that neither the Appellant nor the Respondent suggested that the panel did not have the power to amend condition (i) as suggested by NCAS. Indeed the Appellant accepted, expressly, that the power to amend the condition arose under rule 43(1) of the Family Health Services Appeal Authority (Procedure) Rules 2001.
72. In my judgment the panel was entitled to amend condition (i). It did not act unlawfully in so doing unless it can be demonstrated that it acted irrationally or unreasonably. In my judgment there is no possible basis for such a conclusion. Whether condition (i) as originally drafted, was unlawful on the grounds of irrationality or unreasonableness may be a moot point. On any view, however, it was drafted in such a way so as to give rise to legitimate concern on the part of NCAS. The proposed amendment removed the concerns of NCAS as identified to the panel. On that basis alone, in my judgment, it could not be said that the decision to amend the condition was irrational or unreasonable. As it happens, it seems to me that the amended condition would provide greater protection to patient safety than the condition as originally drafted. In my judgment that is a further reason why any challenge to the amendment to condition (i) on grounds of unreasonableness or irrationality is bound to fail.
73. I have reached the conclusion that the appeal fails. Having reached that conclusion I make two general points. First the decision of the panel was one which I have found was open to a reasonable panel. That does not mean that many other panels would not have acceded to the view of the Appellant that the Respondent should be removed from its performers list. Second I recognise that there is an outstanding appeal against the first decision of the panel. I would be willing to convene a case management conference in relation to that appeal when judgment is handed down in this appeal. I propose to hand down my judgment in this appeal on Friday 3 July 2009 at 9.45am at the Cardiff Civil Justice Centre. If it was thought appropriate to convene a case management conference in relation to the outstanding appeal I propose that such a case management conference take place by telephone. If the parties wish to avail themselves of a case management conference they should send to my Clerk by email the Notice of Appeal in that case and any document in response filed on behalf of the LHB.
74. Any issues about the costs of this appeal should be addressed in writing in advance of the handing down. In that way, if there is to be no case management conference I can make a decision about costs on the strength of written submissions. If, of course, a case management conference is to take place then if both parties consent there need be no written submissions about costs but I can hear short oral submissions.