The Judicial Committee of the Privy Council Decisions

Dr. Manjula Krippendorf Appellant

v.

The General Medical Council Respondent

FROM

JUDICIAL COMMITTEE OF THE PRIVY COUNCIL OF THE

10th October 2000, Delivered the 24th November 2000

------------------

Lord Saville of Newdigate

[Delivered by Sir Christopher Slade]

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1. This is an appeal against a determination of the Committee on Professional Performance ("the CPP") of the General Medical Council ("the Council") on 22nd July 1999, when the CPP, having determined that the standard of the appellant’s professional performance had been seriously deficient, directed that her registration on the Medical Register should be suspended for a period of twelve months. The CPP further ordered that, such being necessary for the protection of members of the public and in the appellant’s best interests, her registration should be suspended with immediate effect. At the conclusion of the hearing, their Lordships announced that, for reasons to be given later, they had decided humbly to advise Her Majesty that the appeal ought to be allowed and that the determination of the CPP should be set aside. The following are the reasons which their Lordships now give for their Report.

The statutory background

2. The Council is charged by statute with the maintenance of the Medical Register and thus with ensuring, so far as it is able within the limits of its powers, that the public is appropriately protected by the restriction of a doctor’s registration if that is necessary. Before the enactment of the Medical (Professional Performance) Act 1995 (section 1 of which was incorporated in the Medical Act 1983 as section 36A), these powers were limited to removing or restricting a doctor’s registration in cases of serious professional misconduct or convictions of criminal offences or serious impairment of fitness to practise for reasons of health. These matters had been and still are dealt with by the Professional Conduct Committee or the Health Committee of the Council. Following such enactment however, two new Committees namely the CPP and the Assessment Referral Committee, have been established and the Council has been given powers, through the CPP, to suspend a doctor’s registration, or impose conditions on it, in cases where the CPP find that the standard of his professional performance has been seriously deficient. References hereafter to "the 1983 Act" are intended as references to the Medical Act 1983 as amended by the Medical (Professional Performance) Act 1995.

3. The CPP made the directions now under appeal in reliance on section 36A of the 1983 Act, of which the most material provisions are as follows:-

"(1) Where the standard of professional performance of a fully registered person is found by the Committee on Professional Performance to have been seriously deficient, the Committee shall direct –

(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.

…

(7) Where the Committee on Professional Performance give a direction under this section for suspension or for conditional registration, or vary the conditions imposed by a direction for conditional registration, the Registrar shall forthwith serve on the person to whom the direction applies a notification of the direction or of the variation and of his right to appeal against the decision in accordance with section 40 below.

…

(9) While a person’s registration in the register is suspended by virtue of this section he shall be treated as not being registered in the register notwithstanding that his name still appears in it."

4. Their Lordships make two preliminary observations on the effect of section 36A. First, while the section could have been drafted so as to require a test of the practitioner’s professional competence, that is not the test which the legislature has chosen. The opening words of section 36A(1) make it clear that it is the standard of the past professional performance of the practitioner in the work which he has actually been doing to which the CPP must direct its attention. Secondly, neither the 1983 Act nor the Rules made thereunder contain any definition of "seriously deficient performance". In a booklet published in November 1997 and entitled "When your Professional Performance is Questioned", the Council indicated the interpretation of the phrase which it intended to adopt, as follows:-

"‘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."

5. In view of the use of the past tense in section 36A, the words "have been" would be more appropriate than the word "are" in both places where it appears in the third sentence of this passage. With this qualification, their Lordships see no reason to criticise the general guidance thus given in the booklet, provided that it is not regarded as exhaustive.

6. Section 38 of the 1983 Act provides that, on giving a direction for suspension under section 36A in respect of any person, the CPP "if satisfied that to do so is necessary for the protection of members of the public or would be in the best interests of that person, may order that his registration in the register shall be suspended forthwith …".

7. Sections 40(1)(aa) and 40(4) confer a right of appeal to Her Majesty in Council from a decision of the CPP under section 36A, but section 40(5) imposes a restriction not applicable to appeals from decisions of the Professional Conduct Committee by confining such right of appeal to "a question of law". This is the first appeal from a decision of the CPP. Their Lordships therefore consider it advisable to give a fuller summary of the somewhat complicated procedures which led to the decision than may be necessary or appropriate in later cases.

8. The performance procedures in the present case have been regulated by the General Medical Council (Professional Performance) Rules Order of Council 1997 (S.I. 1997 No. 1529) ("the Rules") as corrected in November 1997 and March 1998. The Rules, which provide a comprehensive framework for the procedures, came into force on 1st July 1997. The CPP are therefore entitled only to look at matters which occurred after 1st July 1997.

The appellant’s background

9. The appellant, who was born in 1947, married a German citizen in 1992 and is herself a German citizen. She has been practising as a doctor in a number of parts of the world since 1969. In her curriculum vitae, she summarises her educational qualifications as follows:-

"M.B.B.S. Poona University, India

(1/64-8/69)

M.P.H. Johns Hopkins University, USA

(6/81-9/82)

M.S. (Education) Johns Hopkins University, USA

(1/81-6/83)

Post Doctoral Paediatrics Neuro-developmental,

Fellowship School of Medicine, John Hopkins

University, USA (1/81-6/81)

Post Doctoral Maternal & Child Health, School

Fellowship of Public Health, Johns Hopkins

University, USA (9/82-6/83)

Certificate of General Practice of Medicine,

Training Bezirksarztekammer

Sudwurtemberg, Germany (3/98)"

10. From September 1969 to June 1974, after leaving Poona University, she served with the Army Medical Corps of the Indian Armed Forces in various large military teaching hospitals, where she did her internship. From November 1974 to December 1980 she worked as Senior Paediatric Registrar with the Bendel State Health Service in a 40-bedded unit at the Specialist Hospital, Benin City, Nigeria. From July 1983 to July 1984 she did research work on child health as an Associate at the Department of International Health, School of Public Health, John Hopkins University, Baltimore, U.S.A. From September 1983 to March 1985 she worked as Director of Medical Programs at the Okhla Centre for Development Disability, New Delhi, India. From June 1985 to August 1992 she worked as Director of Programmes at Neuro-Development Clinics within multi-disciplinary settings at New Delhi and Baroda. Between July 1988 and June 1989 she also did further research on child health with John Hopkins University. From December 1992 to June 1993 she worked as a Medical Consultant with the United Nations Development Program, New York, U.S.A. From June 1993 to December 1993 she was employed as Medical Co-Ordinator with the National Injury Prevention Program for Romania and Spinal Cord Injury Project, Bucharest and the International Federation of the Red Cross and Red Crescent Societies in Geneva, one half of the job involving working with spinal cord-injured children and adolescents. From March 1994 to September 1994 she worked on research at the Department of Paediatrics at the University of Dusseldorf. From May 1995 to May 1996 she carried on a general medical practice in Stuttgart. In March 1996 she obtained the qualification of Abbrobationsurkunde (Approbation) in Stuttgart. Her curriculum vitae lists a large number of Reports given by her concerning child health or public health in many parts of the world and a number of papers on such matters published or read at conferences. She appears to have had extensive expertise in many parts of the world in training and in health promotion in various aspects of public health, especially maternal and child health. She told their Lordships, without contradiction, that she is internationally recognised as a specialist in child health and that, until the complaint lodged in March 1998 which triggered the present proceedings, she had an "unblemished record" after 28 years of practice.

The complaint

11. On 15th October 1996 the Council conferred on the appellant a certificate of full registration as a medical practitioner. From October 1996 to April 1997 she was employed as a Locum Consultant Community Paediatrician at the West Cumberland Hospital, Whitehaven, Cumbria. From April to August 1997 she was employed in the same capacity by the Dumfries and Galloway Community N.H.S. Trust. From September to December 1997 she was employed in the same capacity by the Shetland Health Board. From January to May 1998 she was employed as a Locum Associate Community Paediatrician by the Barking, Havering and Brentwood Community Health Trust. From 15th June 1998 until 11th July 1998, when she was suspended, she was employed as a Locum Consultant Community Paediatrician by the Redbridge Health Care Trust.

12. On 25th March 1998 a formal written complaint concerning the appellant was addressed by Dr. Derek Cox, the Director of Public Health with the Shetland Health Board to the Council. The complaint began as follows:-

"I wish to make a formal complaint concerning the professional competence of the above doctor. My specific complaint is that during September 1997 Dr. Krippendorf carried out a schools BCG immunisation programme in which she administered BCG vaccine to 227 children in Shetland and that subsequent events lead to the conclusion that she used the incorrect injection technique leading to an unusually very high incidence of side effects. As you will see from the following, there are other aspects of this doctor’s professional practice which give rise to concern."

13. The other matters referred to in the letter of complaint concerned the appellant’s performance in her role as a consultant paediatrician in two potential child protection cases.

The Assessment Panel

14. The receipt of this complaint triggered a screening process provided for by rules 3 to 6 and the eventual hearing by the CPP. Rule 3 provides for the preliminary consideration of such a case by a member of the Council to be appointed for the purpose and to be known a "the medical screener". Rule 5 precludes the medical screener from taking any action under rule 6 in connection with a case unless the complaint or information received by the Council satisfies certain conditions, one of them being that it suggests to the medical screener that "the standard of the practitioner’s professional performance may have been seriously deficient".

15. Rule 6(1) authorises the carrying out of an assessment in a case where the medical screener is of the opinion that it needs to be carried out and the practitioner has agreed that this should be done. On 30th September 1998 the appellant sent a form of response to the Council agreeing to the carrying out of an assessment of her performance (thereby obviating the need for the medical screener to refer the case to "the Assessment Referral Committee" which, under rules 14 and 15, would otherwise have had to consider whether an assessment needed to be carried out and to give any consequent directions). In her response the appellant described the speciality in which she most regularly practised as being "International Public Health Medicine" and her sub-speciality as being "Maternal and Child Health". She stated that she also practised in the speciality of "Educational Medicine".

16. By virtue of rule 6(4), the appellant’s agreement to an assessment led to the constitution of the "Assessment Panel" under Part III of the Rules, which includes rules 7 to 13. Rule 7 provides for the appointment by the Council of a member of the Council who is a doctor as "the case co-ordinator", his functions to include that of appointing the members of the Assessment Panel. Rule 8 provides for the constitution of Assessment Panels. Rule 8(1) provides that an Assessment Panel shall include a lead assessor who shall be a doctor, at least one other doctor and one lay person none of whom shall be a member of the Council. Rules 8(3) and 8(6) provide:-

"(3) Subject to paragraph (6), when appointing members of an Assessment Panel from the list of doctors referred to in paragraph (4), the case co-ordinator shall have regard to the specialty in which the practitioner regularly practises.

….

(6) Where the case concerns a complaint or information relating to a speciality in which the practitioner does not regularly practise, paragraphs (3) and (5) shall apply as though references to the specialty in which the practitioner regularly practises were references to the specialty to which the complaint relates."

17. These two sub-paragraphs suggest that the Assessment Panel is expected to direct its attention to the performance of the practitioner in the speciality to which the complaint relates, whether or not that is the speciality in which he regularly practises.

18. Rule 11, headed "Procedure of Panels", begins by providing:-

"11.-(1) In carrying out an assessment, an Assessment Panel shall, subject to any guidance given by the Council in relation to the carrying out of an assessment, adopt such procedures as appear to them to be necessary, having regard to the nature of the practitioner’s work, to assess the standard of his professional performance, Assessment Panel shall in particular – …"

19. Sub-paragraphs (a) to (i) then impose a number of particular obligations on the Panel, including (in sub-paragraph (d)) an obligation to interview the complainant if he agrees to be interviewed.

The Portfolio

20. In early October 1998 a Performance Assessment Officer acting on the instructions of the case co-ordinator wrote to the appellant saying:-

"You have confirmed that although the specialty you most regularly practise is international and public health medicine, you have not practised this specialty since you came to the United Kingdom. The GMC is not allowed to look at your performance prior to 1 July 1997 because our statutory powers do not permit us to consider performance prior to that date. Given this, your assessment will focus on Community Child Health which has been your field of practice since that date."

21. There was enclosed with the letter a lengthy document called a "Portfolio". The appellant was informed that the Assessment Panel required her to complete it in advance of the assessment "to provide information for them about yourself and your practice".

22. On 5th November 1998 the appellant wrote to the Council expressing anxieties about the basis of the proposed assessment. She reiterated that her main speciality was "International Public Health" within which her sub-speciality was "Maternal and Child Health", which in Britain, she said, is called "Public Health Paediatrics". She said it was essential that her assessment should be in the sub-speciality of "Public Health Paediatrics".

23. The lengthy form of Portfolio (about 85 pages) presented to the appellant for completion was headed "the Portfolio for Paediatricians Undergoing Assessment by the GMC". It was clearly intended by the Council for use by all paediatricians (not only those whom the appellant would describe as "Public Health Paediatricians"), though the Introduction stated that the recipient "would not be expected to be competent in clinical skills appropriate to the practice of paediatrics or practical procedures in all of the areas mentioned if they are not relevant to your particular practice". Part I of the Portfolio requested factual information about the recipient and her paediatric practice, including all the posts which she had held during the previous two years. Part II requested more detailed information about her practice. It included many and very detailed questions as to her own perception of her experience and her level of competence in a large number of features of paediatric practice. Significantly, paragraph 2 of the Introduction to the form gave this reassurance:-

"The manner in which you complete this portfolio is not part of the assessment. The portfolio merely allows the assessors to look at the information about you and your clinical practice in an objective and logical way."

24. The appellant completed such parts of the Portfolio as she considered applicable to her case as a Public Health Paediatrician. Its receipt was acknowledged by the Council in a letter of 12th November 1998. There then followed correspondence concerning, in particular, the appellant’s request that a Public Health Paediatrician should be appointed to the Assessment Panel and in regard to her proposed nominees and "supporter", having regard to rules 11(3) and 11(5)(b).

25. In due course, the Assessment Panel was constituted with Dr. Una MacFadyen as Lead Assessor, Dr. Graham Clayden as Medical Assessor, Dorothy Symes as Lay Assessor, Dr. Marion Crouchman as fourth Assessor and Dr. Edward Williams, a public health specialist, as fifth Assessor.

Phase 1 of the Assessment

26. On 3rd December 1998 the Assessment Panel (henceforth called "the Panel") held their initial meeting with the appellant, the expressed purpose being to explain the assessment process and to review the Portfolio. The subsequent Report of the Panel records that the following exchange took place at this meeting:-

"Dr. Krippendorf raised concerns she had about the BCG programme in Shetland. We explained that the purpose of our assessment was to consider her performance as a doctor from July 1997 and not primarily to investigate the BCG complication issue. We advised Dr. Krippendorf to inform the GMC of her concerns and to submit the written documentation she had prepared to the GMC directly which she did."

27. Their Lordships pause to observe that the specific and serious complaint which had led to the assessment related to the appellant’s performance as a doctor in administering the BCG vaccine to 227 children in Shetland only some fifteen months earlier, when it was said that she had used the incorrect injection technique. They therefore find it surprising that the Panel did not regard this issue as one of primary importance. It will be necessary to revert to this point.

28. The remainder of what has been called "Phase 1" of the assessment took place over three days. At that time the appellant was no longer in active practice, so the assessment was modified to allow case-based orals developed from the case records reviews. Forty medical records were examined. On 7th December 1998 six third-party interviews were conducted at Shetland. On 8th December four such interviews took place at Aberdeen. On 9th December seven such interviews took place at Hornchurch. Also on 9th December the Panel conducted a further interview and case-based oral with the appellant.

Events between the 1st and 2nd Phases of the Assessments

29. In the light of Phase 1, the Panel decided to proceed to the remainder of the assessment, but on 15th December 1998 the appellant wrote saying that she was unable to attend owing to illness. The Panel accordingly rescheduled the timetable for Phase 2. There then followed lengthy correspondence between the Council and the appellant’s solicitors. This culminated in two letters written by the Council to the appellant and dated 22nd February 1999. In the first of these the Council informed the appellant that the case co-ordinator had decided to refer her case to the CPP under rule 12. In the second of them ("the notice of referral") written pursuant to paragraph 3 of Schedule 1 of the Rules, the Council informed the appellant that the hearing of her case by the CPP would begin on 23rd March 1999 and would be an "assessment hearing the procedure for which is specified in paragraph 6 of Schedule 3".

30. On 17th March 1999 the appellant’s solicitors wrote to the Council expressing her unconditional acceptance of the Council’s requirement to complete her assessment but expressing her concern that the five assessors did not appear to her adequately to include public health paediatric experience.

31. After a meeting of the CPP held on 23rd March 1999, the Council wrote to the appellant on the same day recording that the CPP had decided to direct that an assessment of the standard of her performance be carried out by an Assessment Panel appointed by the case co-ordinator within three months. The letter stated:-

"In reaching their decision the Committee have taken into account in particular the evidence received from Dr. Derek Cox regarding your professional performance as a locum consultant paediatrician in community child health:

a. in relation to the Shetlands schools BCG immunisation programme; and

b. in relation to your management of child protection cases.

The effect of this direction is that the Committee expect you now to complete the assessment which was begun in December 1998 and to co-operate fully with the Assessment Panel. The Committee do not expect the Assessment Panel to repeat those parts of the assessment already undertaken in December … When the assessment has been completed, the Assessment Panel will send their report to the Committee which will then resume consideration of your case …"

32. On 17th May 1999, Phase 2 of the assessment was conducted at the Clinical Skills Laboratory, St. Thomas’ Hospital, London. This was subsequently described by the Panel in their Report as "planned to offer Dr. Krippendorf the opportunity to complete objective tests of her paediatric practice".

The Assessment Report

33. In June 1999 the Council received the signed Assessment Report of the Panel ("the Report"). Pursuant to Rule 13[2], the Panel’s formal opinion, as stated at the end of the Report, was that

(a) the standard of the appellant’s professional performance has been seriously deficient;

(b) the standard of her professional performance as a paediatrician was likely to be improved only with full retraining in general paediatrics as well as in any specific specialty such as community paediatrics;

(c) the appellant should limit her professional practice to non-clinical work. "In any such practice, she should undergo training in current medical theory, management within the NHS and the statutory and legal requirements for inter-agency working in the U.K. in accordance with the General Medical Council rules as outlined in ‘Good Medical Practice’".

34. The Report was long and careful. In their Lordships’ opinion, however, it demonstrates a basic error in law in the Panel’s approach to their functions. The duty imposed by rule 11(1) on the Panel in carrying out an assessment is the duty "to adopt such procedures as appear to them to be necessary, having regard to the nature of the practitioner’s work to assess the standard of his professional performance …" [not his professional competence]. This reflects the wording of section 36A of the 1983 Act which, as has already been pointed out, shows that it is the past professional performance, not the professional competence, of the practitioner in the work which he has actually been doing to which the CPP (and likewise the Panel) must direct their attention. (Though paragraph 10 of Schedule 3 of the Rules, which sets out the procedure at performance hearings, twice uses the phrase "whether the standard of [his] [the practitioner’s] professional performance is seriously deficient", it is common ground that the 1983 Act itself, with its reference to the past tense, must take precedence).

35. With the last mentioned 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 insofar as the answers may throw light on the practitioner’s professional performance in the specific areas of work which he has actually been doing.

36. In the present case, instead of focussing their attention primarily on the appellant’s track record, the Panel directed it primarily to assessing her professional competence in a number of areas of work falling within what they perceived to have been her various job descriptions since 1997 (though the extent to which such descriptions had in fact been brought to her notice was in part in dispute). Phase 2 of the assessment was described in the Report as consisting of tests of knowledge and clinical skills relevant to the work in which the appellant was employed at the time when complaints about her work were made to the Council. It was, however, apparently conducted almost entirely without reference to her performance in the work she had actually been doing. As the Lead Assessor, Dr. MacFadyen said in the course of her evidence (Day 2.19D):-

"I think we assessed her on what might come a community paediatrician’s way within the post that she undertook."

37. The same erroneous approach is demonstrated in the Report itself. The appellant had persistently complained that she was being assessed in general paediatrics, rather than in her work as a community paediatrician. The Panel, however, stated in their Report:-

"All paediatricians in the UK are expected to have undergone training in general paediatrics and specialty paediatrics. Community paediatrics requires a knowledge of and experience in general and developmental paediatrics. The range of duties required of the community paediatrician are likely to involve varying levels of clinical practice and whether in a locum or substantive post clinical competence is essential when responsibility is taken for clinical care."

38. By way of example, one clinical situation, indeed the only acute clinical situation, in which the appellant was tested was that of Basic Life Support. The Report stated that she demonstrated an inability to perform this function. There was, however, apparently no evidence that she had ever had to perform this function over the material period, so that it was not relevant to her professional performance.

39. Two further examples of the Panel’s misdirected approach to the assessment process require mention. First, while offering no explanation for this omission, they did not investigate or make any findings in relation to the complaints by Dr. Cox, even though these complaints had triggered the whole of the proceedings and had directly related to the professional performance in the work which she had been doing. Secondly, as is indicated by the frequent abbreviated references to "Port" which appear in their Report, they relied heavily on the Portfolio which had been submitted by the appellant in response to the Council’s request. A large number of questions answered by the appellant in this Portfolio were directed to her professional competence in dealing with specific problems which a general paediatrician might come across in the course of his practice in the United Kingdom, without regard to whether the appellant had ever had to deal with them in the course of her actual work. Their Lordships would accept that on occasions questions directed to a practitioner’s knowledge and clinical skills may throw light on his professional performance in work which he has actually been doing, in cases where there is reason to suspect that his performance in such work may have been seriously deficient. In their Lordships’ opinion, however, the questions directed to and answered by the appellant in the Portfolio were of far too extensive and detailed a nature properly to constitute part of the basis on which the Panel were entitled to reach their conclusion.

40. In this context of the Portfolio, a quite separate point arises. As has been stated, the Introduction to the form which accompanied it had in clear terms represented to the appellant that the manner in which she completed it would not be "part of the assessment". This assurance seems to have been disregarded or overlooked by the Panel which in their Report, as has already been stated, made frequent reference to the answers given by the appellant in the Portfolio, to justify their findings, in most instances adverse to her. This in their Lordships’ opinion was not in the circumstances a fair use of the Portfolio. From the assurance which had been given to her, she was entitled to assume that the answers which she gave in it would not form part of the basis of the Report, but would be treated by the Panel merely as background information on the basis on which they might make further directly relevant inquiries.

The performance hearing

41. The CPP were duly convened for a "performance hearing" to take place on 14th July 1999. Pursuant to paragraph 8 of Schedule 1 of the Rules, they had the assistance of two "specialist advisers" to advise them on medical questions. They also had the assistance of a "legal assessor" appointed by the Council under paragraph 7 of Schedule 4 to the 1983 Act. They did not, however, have the advantage of any guidance given in the 1983 Act or the Rules as to the weight which they should attach to any findings of fact or expressions of opinion made by the Panel.

42. The course of the hearing before the CPP was as follows. Miss Foster on behalf of the Council opened the case. During the course of her opening, she made it plain (Day 1.2G) that, the assessment having taken place, she would not be relying on the complaints laid by Dr. Cox. In response to a request by the appellant’s counsel, however, Miss Foster called Dr. Cox who gave evidence as a witness, not as a complainant. Dr. MacFadyen, the Lead Assessor (who in this capacity fell to be treated as the author of the Report – see paragraph 8(3) of Schedule 3 of the Rules) was then called on behalf of the Council. Under cross - examination (Day 2.22D-F), she confirmed that the initial complaint had been regarded by the Panel merely as a "backdrop" to their Report, triggering the setting in place of the Panel and having no further relevance for them. The appellant then gave evidence. During the course of her cross-examination, questions were put to her regarding some of the numerous third party interviews on which the Panel had relied. Following an intervention by the Legal Assessor in this context, the appellant’s counsel was supplied with a copy of the interviews. Having read them and discussed them with the appellant, he said that he did not require any of the persons interviewed to be called but requested that copies of the full interviews should be supplied to the CPP before they reached their determination.

43. During the course of her cross-examination (Day 3-2D) the appellant frankly accepted that, on the basis that the assessment was carried out, she had not "cleared" it. It should also be recorded that she expressed her intention to do no clinical work in the future except in the field of public health. She accepted that, even before continuing to practise in her chosen career of public health, she should undergo retraining in current medical theory, management within the NHS and the legal requirements for inter-agency working: (Day 3.2G-3C).

44. After counsel’s cross-examination of the appellant had concluded she was asked questions by members of the CPP and then re-examined. Her counsel then made his submissions. After further colloquy with the specialist advisers, the Legal Assessor offered his advice on a number of matters. In the course of it he said (Day 4.16E-17B):-

"If you decide that the assessment is or may be unfair, you should disregard it, and I imagine on the evidence you have heard, that would conclude the issue in the doctor’s favour.

Although the Assessment Panel clearly had regard to the initial complaints by Dr. Cox, as is contemplated by all of the relevant rules (indeed, they interviewed him), the Council has chosen, for reasons which have not been elaborated upon, not to rely on any evidence relating to that complaint, and has not made any submissions to you in justification of that complaint.

Accordingly, I would advise you that you should consider whether it would be fair in the circumstances to rely on the assessment, in so far as its conclusions are based on an acceptance of the subject matter of that complaint, particularly if you are unsure whether the Panel had due regard to the documentary material submitted by the doctor. The Committee has that material and can, of course, make a judgment as to the weight to be attached to it and the significance of it.

Further in relation to the report of the Assessment Panel, you are not bound by the contents of the report, or the opinions and conclusions reached in it. It is the Committee which has to determine the issue which I articulated at the outset of this advice in the light of, and on the basis of, the whole of the evidence before it. The burden of proving seriously 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."

The determination of the CPP

45. In their Lordships’ opinion, this advice, so far as it went, was correct and was not perhaps given sufficient weight by the CPP. The CPP began their determination as follows:-

"The Committee have heard that concerns about your performance arose in late 1997 whilst you were employed for three months as locum consultant community paediatrician to the Shetland Health Board. In particular, it was reported that an exceptionally high proportion of children to whom you had administered BCG vaccinations had developed adverse reactions; there had also been instances when you had failed to follow national and local guidelines regarding child protection matters. Those concerns led the Shetland Health Board to refer you to the GMC.

The Committee have noted that background to your case and the Health Board’s specific concerns. However, in coming to their decision today as to whether or not your performance has been seriously deficient, they have not relied on the complaint from the Health Board, in itself, or the evidence in the papers submitted by the Health Board in 1998.

Instead, they have focused on the evidence in the report of the assessment of your performance conducted by an Assessment Panel appointed by the GMC. The Committee have had regard to the advice of the legal assessor as to the weight they should attach to those parts of the assessment report which dealt with the subject matter of the original complaint. They have also been assisted by the oral evidence they have received during these proceedings and by the advice of their specialist advisers."

46. The CPP expressed themselves as satisfied that the assessment was conducted fully in accordance with the requirements of rule 11 and that "the assessment in phase I and the structured test in phase II provided an accurate reflection of the standards of knowledge, skills and attitudes expected of community paediatricians ". They accordingly concluded that the assessment was fair. They proceeded to note a number of findings in the Report of the Panel "that the standard of your professional performance was unacceptable or that it gave cause for concern". They listed several such findings which caused them particular concern, including the finding that "you were unable to perform or describe the procedure for, basic life support". Though they had previously disclaimed any reliance on the complaints from the Shetland Health Board, and had not examined those complaints, they also made particular mention of the Panel’s finding that "in relation to your post in the Shetland Isles, you had failed to comply with both national and local protocols relating to Child Protection Procedures".

47. The CPP expressed themselves as satisfied by "the strong evidential basis" within the Report that the criticisms of the appellant’s performance were valid. Accordingly "having regard to the evidence presented to them", they determined that the standard of her professional performance had been seriously deficient. They agreed with the Panel that she should not practise clinical work. However, they went further than the Panel, in expressing no confidence that she would be able to perform satisfactorily in a non-clinical post and in accordingly directing that her registration should be suspended for a period of 12 months with immediate effect.

48. It is clear from the CPP’s determination that, in so concluding, they relied primarily on the Report of the Panel. That Report was, in their Lordships’ judgment, flawed as a matter of law for the reasons already stated. First, it demonstrated a basic error in the Panel’s approach to their functions, since, essentially, they had sought to assess her professional competence in a number of areas of work relating to what they perceived to be her job descriptions and had thereby assessed her as incompetent, instead of assessing her professional performance by reference to the work she had actually been doing since 1997. In the Council’s letter of 23rd March 1999, the appellant had been informed that, in reaching their decision to direct an assessment, the CPP had in particular taken into account Dr. Cox’s complaint. 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.

49. Secondly, for the reasons already stated, the Report on which the CPP so heavily relied was in their Lordships’ opinion unfair to the appellant insofar as it relied on her answers given in the Portfolio. In the context of fairness, their Lordships add that, in their opinion, in the particular circumstances of this case, fairness demanded that the appellant should be given a proper opportunity to refute, if she could, the serious complaints which directly related to her professional performance and had led to the assessment.

50. Their Lordships are accordingly of the opinion that the CPP misdirected themselves in law in reaching their determination.

Other matters

51. In the circumstances, their Lordships do not find it necessary to consider a number of other points which were canvassed or arose in the course of argument. One of them related to the jurisdiction of the CPP to conduct the performance hearing having regard to the form, at the relevant time, of the definition of "performance hearing" in paragraph 1 of Schedule 3 of the Rules. This point as to jurisdiction was waived by the appellant’s counsel at the hearing before the CPP, but possible questions might perhaps have arisen as to the effectiveness of the waiver if the point had otherwise been relevant. Other points on which the appellant continued to rely at the hearing before their Lordships’ Board included objections concerning the composition of the Panel and the failure of the Panel to comply with the procedure laid down in Rule 11(i) (f). She also raised questions concerning the validity of findings of fact by the Panel and the CPP, insofar as they were based on the third party interviews. She further submitted that, on any footing, the CPP should not have directed her suspension, since it had not been recommended by the Panel.

Conclusion

52. In the result and for the reasons stated, their Lordships decided that the appropriate course for them to take was humbly to advise Her Majesty that this appeal should be allowed and that the determination of the CPP dated 22nd July 1999 should be quashed, (pursuant to section 40(7)(b) of the 1983 Act). The respondent Council must pay the costs of the appellant as a litigant in person.

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