Neutral Citation Number: [2008] EWHC 2711 (Admin)
Case No: CO/9621/2007
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 12/11/2008

Before :

THE HONOURABLE MR. JUSTICE McCOMBE
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Between :

	DR. HUSSAM MOHAMMED AZZAM	Claimant	
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	THE GENERAL MEDICAL COUNCIL	Defendant	

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Mr Martin FORDE QC & Mr John DE BONO (instructed by The Medical Defence Union) for the Claimant
Miss Catherine CALLAGHAN (instructed by GMC) for the GMC

Hearing dates: 9-10 October 2008
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Judgment 

Mr Justice McCOMBE: 
(A) Introduction

1.	This is an appeal against the decision of a Fitness to Practise Panel (“the Panel”) of the General Medical Council (“the GMC”) of 12 October 2007, brought under section 40 of the Medical Act 1983 (“the Act”), by Dr Hussam Mohammed Azzam (“Dr Azzam”). By the decision, delivered in three parts, the Panel found that Dr Azzam had been guilty of serious misconduct, that his fitness to practise was thereby impaired and that as a result his registration as a medical practitioner should be suspended for one month. Pending the present appeal the order for suspension has not taken effect.
(B) Facts
2.	The background facts of the case are not, and have not ever been, seriously in dispute. 
3.	Ms Emma McAthey (“the Mother”) was a 19 year old woman in her first pregnancy. On 1 September 2003 at about 1715 hours her baby was born. On delivery, the umbilical cord was wrapped around the baby’s neck and he was not breathing. Attempts at resuscitation were made, but tragically the child died at about 2015 hours on the same day. The cause of death was asphyxia developing in the second stage of labour. The expert evidence was that if an error had not been made in the assessment of a cardiotocograph (“CTG”) reading at about 1615 hours it was likely that the child would have been delivered successfully at about 1640. It was common ground before the Panel that it was deficient management from about 1615 that led to the tragic outcome. Dr Azzam was the senior doctor on duty at the crucial time. He admitted that it was his error that led to the outcome. He was employed at the time as a Specialist Registrar in Obstetrics and Gynaecology at the South Tyneside District Hospital (“the Hospital”).
4.	The Mother had been admitted to the Hospital initially at 0030 hours on 1 September 2003 with the signs of incipient labour. However, she was discharged home shortly after 0300 hours. She was re-admitted at 0700 hours. The history of the labour is summarised in the expert report of Dr. Michael Maresh (“Dr Maresh”), who gave substantially agreed evidence before the Panel, in the following terms: 
“She was readmitted at 0700 hours on 01-09-03. It was noted that her contractions were now every 3-4 minutes. Abdominal examination revealed the head to be 2/5 palpable in the abdomen. A CTG was recommenced at 0702. This continued for approximately 15 minutes. It is difficult to interpret it but the base line rate appears to be between 130 and 140 and there is normal variability of the base line with accelerations. There are possibly some very brief decelerations. A vaginal examination performed at 0715 showed her cervix to be 5cm dilated with the head well applied and 1 cm below the ischial spines. The position of the head was undefined and the membranes intact. She was given diamorphine for analegesia. Half hour observations were performed on her. The fetal heart rate was between 130 and 140 and this was recorded both in the notes and on the partogram. The contraction frequency tended to be about 3 every ten minutes. At 1115 a vaginal examination was performed and it was found she was 8 cm dilated. Artificial rupture of the membranes was performed and clear amniotic fluid drained. She then used entenox to supplement the analgesia. Intermittent monitoring continued and the base line heart rate remained the same at between 130 and 140.
At 1315 she had a further reassessment. On abdominal examination the head was noted to be 2/5 palpable. Vaginally the cervix was found to be 9 cm dilated with the head well applied. Clear amniotic fluid drained. The head was felt to be at the level of the ischial spines. The position of the head was not defined. In view of the minimal progress over the previous 2 hours it was discussed with her whether she wanted to have an oxytocin drip. She felt that she needed to have further pain relief. Following discussions with Dr Azzam and Midwife Convery (who was the midwife in charge of the delivery suite for that shift) it was agreed that she should have a further injection of diamorphine and a review after an hour.
At 1415 she wanted to push and a further vaginal examination was performed which suggested that in fact there was no change with the cervix still only 9 cm dilated but well applied to the presenting part which was below the ischial spines. The position was still not defined by Midwife Heron. Following discussions with Dr Azzam it was agreed to commence oxytocin. On the partogram the contractions were recorded as coming 3-4 every ten minutes and fetal heart recordings which were being done every 15 minutes were between 120 and 130. An intravenous infusion was inserted and oxytocin commenced at 1445. At this time continuous fetal monitoring was commenced. The initial CTG shows that the contractions were coming approximately 4 every ten minutes. The basal heart rate was about 120 with normal base line variability and accelerations. There were occasional variable decelerations. The oxytocin was increased every 15 minutes. At its increase in rate at 1530 Midwife Heron had recorded that she was having strong urges to push and that the contractions were 3-4 every ten minutes. On the CTG there is no contraction belt recording present at this stage. The basal fetal heart had increased to between 140 and 150 and there were still accelerations. This rise in heart rate was noted by Midwife Heron on the partogram. At this stage Emma McAthey was wanting to push and it appears that Midwife Heron allowed this to occur. On the summary of labour 1530 is noted to be the commencement of the second stage of labour.
With the onset of pushing the CTG becomes harder to interpret partly because she was initially standing. However by 1600 hours she was back lying in bed and the contraction belt then recorded satisfactorily. The contraction frequency was 6 every ten minutes. The partogram completed by Midwife Heron records the contraction frequency to be 5 in ten. It also shows that the fetal heart rate was approximately 130 at this stage. While between 1530 and 1550 the CTG is difficult to interpret, it does appear that she is getting deep decelerations but because there is a non-recording of the contractions it is difficult to tell whether there these are variable or late decelerations. However from 1552 when the contraction recording starts it is clear that the decelerations are late after the contractions with the base line rate recovering to about 180 just before the next contraction commences. The decelerations are lasting for approximately 1 minute prior to recovery. Midwife Heron has recorded that the base line was rising but that these were early decelerations with satisfactory recovery. Midwife Heron informed Dr Azzam who reviewed her and advised continuing for a further 30 minutes prior to review. He signed the CTG at about 1619 but did not write in the notes.
Between 1615 and 1645 the CTG continues to show a similar picture. The contraction frequency was 6 in ten and there were deep late decelerations with recovery to a base line of between 180 and 190. At 1645 Midwife Heron has recorded that the base line heart rate was 150. The is no comment from her about asking for a further opinion from Dr Azzam or the delivery unit midwife coordinator. At 1700 hours Midwife Heron has recorded that the vertex was advancing slowly and was visible with the contraction. She recorded that the base line heart rate was 130-140 with good variability and accelerations. However examination of the CTG at this stage shows an unchanged picture with the heart rate now reaching up to 190 following decelerations. At 1715 the CTG was discontinued as delivery was about to occur.”
   
5.	The evidence showed that at 1615 hours Dr Azzam had been called to the Mother’s room by the midwife who was having difficulty in interpreting the CTG trace. The witnesses said that Dr Azzam only scanned the trace cursorily, perhaps for about 25 seconds. The expert evidence was that this examination of the trace was inadequate and that about a minute at least would be required by a careful doctor to interpret the trace satisfactorily. It was common ground that the trace was “pathological” and that Dr Azzam should have proceeded immediately to instrumental delivery of the baby. Dr Azzam’s evidence was that he interpreted the trace as “suspicious” but not calling for immediate intervention. It seems that he spent about five minutes in the room. He may have examined the partogram and he did listen to the audible heart beat from the monitor. He told the mother to continue to push and that he would review her in 30 minutes.
6.	The evidence of Dr. Maresh was that, if there was doubt as to the CTG trace on examination, Dr Azzam should have attached a fetal scalp electrode to the baby’s head. Dr Azzam accepted this in evidence. As to the audible heart rate from the monitor, Dr Maresh’s view was this,
“…between contractions you will hear the heart rate  starting to go up, so you do not need paper, you do not need to look, you can just look at the mother and just listen if the volume is on to diagnose whether there are late decelerations in the second stage of labour [i.e. a sign of fetal distress]. A student midwife can tell that, let alone a registrar or an experienced midwife.”
(I have not, however, been shown any evidence from the experienced midwife who was in   attendance at the time that she noticed these signs or alerted Dr Azzam to them.)
7.	Dr Azzam’s shift was due to end at 1700 hours. However, his replacement, a Dr Ashraf Mohammed Aziz Ibrahim (“Dr Ibrahim”) arrived early. Dr Azzam handed over to Dr Ibrahim and left duty at about 1635 hours, i.e. about 10 minutes before the time at which Dr Azzam had said that he would review the Mother. 
8.	In summary, according to Dr Ibrahim’s evidence, he understood from Dr Azzam that the CTG trace for the Mother was “not brilliant” but that she was delivering and there was nothing to be done at that moment. It was put to him in cross-examination that Dr Azzam had told him that at a recent review it had been decided that, if delivery had not occurred within half an hour, the baby would have to be got out. Dr Ibrahim said that he could not remember being told anything like that and that he was not called to the Mother’s room to interfere. It was also put to Dr Ibrahim that Dr Azzam had said “We don’t want any problems. Please get that baby out” (if it had not been delivered). Dr Ibrahim said that it was possible that that was said but he could not remember the exact words. In answers to questions from the Panel, Dr Ibrhaim said that there was no alarm communicated to him that he needed to run to the room to interefere immediately.
9.	On this material, much of it admitted by Dr Azzam, the Panel found that Dr Azzam did not interpret or recognise the signs of fetal distress shown by the CTG trace and failed to act upon the signs of that distress, nor did he attach a fetal scalp electrode. In addition, it was admitted that Dr Azzam did not stay in the Mother’s room to assess whether spontaneous delivery was imminent; he did not carry out a vaginal examination or take steps to expedite the delivery by instruments or otherwise. He did not make any record of the review in the clinical notes. Finally, it was admitted that Dr Azzam had not reviewed the Mother after 30 minutes as he had previously decided to do. The Panel also concluded that Dr Azzam had failed to ensure that Dr Ibrahim was aware of the seriousness of the Mother’s and baby’s situation.
(C) Allegation 4 i., the Mahoney case
10.	In addition to charges flowing directly from the instant case, the GMC preferred a further allegation, in support of its case against Dr Azzam, arising out of a case of fetal distress leading to the death of a baby that had occurred because of events at the Royal Bolton Hospital on 21 and 22 June 2002.
11.	In that case, Dr Azzam had been a junior obstetrician under the supervision of a more senior registrar, a Dr. El-Faki. The Mahoney baby died in birth. Dr Azzam had suggested in that case that the child be delivered by caesarean section but had been overruled by his superior. At a peri-natal meeting after this incident Mrs. Mahoney’s CTG trace was reviewed and Dr Azzam was told by all Consultants present that the action that he had proposed had been wrong. At the time of the events of September 2003 he thought, therefore, that he had been wrong to advise an urgent intervention in the Mahoney case.
12.	It had been the original intention of the GMC to prefer charges against Dr Azzam in respect of both the Mahoney case and the present matter. However, the opinion of Dr. Maresh, who advised on both matters, was that there could be no criticism of Dr Azzam’s action in the earlier case. Accordingly, charges were only pursued in respect of the instant case.
13.	Notwithstanding Dr Maresh’s opinion, however, the GMC added a charge in the instant case in the following terms,
“4. At or soon after this review [i.e. the review at 1615 hours on 1 September 2003] you did not… 
[allegations a to h are then set out]…
i. demonstrate that you had learnt from the consequences of not urgently acting upon signs of fetal distress shown on a CTG trace, despite the events that had occurred on 21 and 22 June 2002 when you were employed by Royal Bolton Hospitals NHS Trust…”.
(It seems that this allegation was correctly taken to mean that the failure that was being alleged covered the period from June 2002 until September 2003, notwithstanding the way in which the allegation was simply added to the other allegations concerning the period after the review at 1615 on 1 September 2003.)
14.	A number of arguments arose before the Panel and before me out of the addition of this allegation. An application was made on Dr Azzam’s behalf at the start of the hearing to strike this allegation out. That application was refused. The Panel’s decision on this application forms one of the grounds of appeal before me; I return to it later.
(D) The Panel’s findings
15.	The Panel concluded on the facts that Dr Azzam’s overall assessment of the CTG trace in the Mother’s case was “inappropriate, inadequate, irresponsible, not in the best interests of [the Mother] or her baby and below the standards which could reasonably be expected of a competent obstetrician”. It also found that the failure to attach a fetal scalp electrode was irresponsible. Similar findings were made in respect of the failure to review the Mother within 30 minutes of the review at 1615 hours and to ensure that Dr Ibrahim was aware of the seriousness of the situation.
16.	With regard to the allegation arising out of the Mahoney case, the Panel found that,
“Since you believed that you were wrong in the Mahoney case, you could not have demonstrated by September 2003 that you had learnt from the consequences of not urgently acting upon  signs of fetal distress shown on a CTG trace.”
17.	It found that Dr Azzam’s actions or omissions described in paragraph 4 i were inappropriate and below the standards that could reasonably be expected of a competent obstetrician and that,
“…Believing you had been wrong about the CTG trace, it is your evidence that you did not take steps to learn from this. The Panel considers that you should have done so.”
(Nothing is said as to what Dr Azzam should have learnt. This is perhaps not         surprising as no particulars were ever given of such matters by the GMC.)
18.	It was not found that Dr Azzam’s conduct, with regard to allegation 4 i, in the context of this case, was irresponsible, inadequate or not in the best interests of the Mother and her baby as the Panel accepted “that the CTG traces in the Mahoney and McAthey cases were different”.
19.	At the conclusion of its findings on the facts the Panel’s decision states,
“…the Panel will now invite Mr Grundy [who appeared for the GMC] to adduce further evidence and to make any further submissions as to whether, on the basis of the facts found proved your [Dr Azzam’s] fitness to practise is impaired. Mr. De Bono [who appeared for Dr Azzam] will then be given an opportunity to respond on your behalf .” [Emphasis added]
	   No provision was made for the leading of further evidence by Dr Azzam.
20.	Thereupon Mr De Bono applied to the Panel to admit evidence on Dr Azzam’s behalf in three broad categories: 1. Testimonial evidence; 2. Evidence as to Dr Azzam’s training following the incident in this case; and 3. Evidence from a Dr. Pitman as to Dr Azzam’s current performance particularly in relation to his CTG reading ability at that time. The application was opposed by the GMC on the basis that the evidence was not relevant. However, on consideration of rules 34 and 17(2)(j) of the General Medical Council (Fitness to Practice) Rules Order of Council 2004 (“the Rules”), the Panel decided that it might be assisted by the additional evidence in determining whether Dr Azzam’s fitness to practise was impaired; it therefore decided to accede to Mr De Bono’s application.
21.	The Panel considered that once Dr Azzam “had misinterpreted the CTG trace as suspicious rather than pathological, [that] resulted in…inevitable consequences”, namely, the failure to apply the electrode, failure to stay in the room to assess whether spontaneous delivery was imminent, failure to perform a vaginal examination or to take steps to expedite delivery. The Panel found that Dr Azzam did not spend adequate time in the overall assessment of the Mother and that those actions were inappropriate, irresponsible, inadequate, not in the best interests of the Mother or her baby and below the standards which could reasonably be expected of a competent obstetrician. It recited its other findings with regard to record keeping and the Mahoney case, stating with regard to the latter that “…it was your responsibility to consult with your training supervisor to establish why you were wrong and to have learnt from that incident”. It recited the findings of Dr Azzam’s failings with regard to the handover to Dr Ibrahim.
22.	The principal findings on this part of the case were as follows: 
“The Panel does not accept the argument that impairment of fitness to practise cannot come from a single incident with one patient. In its judgement, the question of impairment depends on the nature and seriousness of the misconduct and, in this case, the need to uphold the standards of the profession and maintenance of public confidence in the profession. Neither does it accept that it can be mitigated by the fact that the case has taken a long time to come to a hearing and that a doctor’s learning and skills have developed since. The Panel has borne in mind the testimonial evidence but gave it little weight at this stage since the facts found proved represent such a departure from the acceptable standard of care that these issues do not affect the Panel’s decision.
The Panel has found two areas of your misconduct to be irresponsible, a term which includes a degree of recklessness. These two areas are firstly your overall review of Ms McAthey at 1615, including your misrepresentation of her CTG trace and the consequential lack of action. Secondly, even if you had assessed the CTG trace as only being suspicious your handover to Dr Ibrahim did not ensure that he understood the seriousness of the situation. In addition, your note keeping has been proved to be below the standards which could reasonably be expected of a competent obstetrician. Taken together these three separate serious failings mean, in the Panel’s professional judgement, that your fitness to practise is impaired.
The Panel notes that you admitted asking Ms McAthey to continue pushing was inappropriate, inadequate, not in the best interests of Ms McAthey or her baby and below the standards which could reasonable [sic] be expected of a competent obstetrician. The Panel has heard no evidence to suggest that this would in fact have been inappropriate even if the CTG trace were pathological. Continuing to push would have been appropriate while you were preparing for an instrumental delivery. The Panel criticises your lack of learning from the Maloney case but does not feel that this error was serious. …”  
23.	In reaching its conclusion on the appropriate sanction the Panel’s main conclusions were as follows: 
“The Panel has borne in mind its duty to protect the public, to maintain public confidence in the medical profession, and to uphold proper standards of professional behaviour as set out in the GMC’s document “Good Medical Practice”. The Panel is conscious that the purpose of sanctions is not to be punitive, but that they may have a punitive effect.
The Panel first considered whether to conclude your case by taking no action, but determined that, in view of the serious findings made against you, this course of action would be insufficient and not in the public interest.
The Panel next considered whether it would be sufficient to conclude your case with a period of conditional registration. In doing so, the Panel has borne in mind the Indicative Sanctions Guidance at S1-13 which sets out when conditions might be appropriate. The Panel was unable to identify any areas of your practice which are in need of assessment or retraining. It has also borne in mind that any conditions must be appropriate, proportionate, workable and measurable. The Panel has concluded that it is not possible in this case to formulate appropriate and workable conditions. Furthermore, due to the seriousness of your misconduct, the public interest would not be served by the imposition of conditions. The Panel observes that it would have reached the same conclusion even if this hearing had taken place several years ago.
The Panel then considered whether it would be sufficient to suspend your registration.
The Panel has borne in mind page S1-6, paragraph 27, of the Indicative Sanctions Guidance which states:
“Suspension can be used to send out a signal to the doctor, the profession and public about what is regarded as unacceptable behaviour.”
It has borne in mind page S1-14, which indicates when suspension might be appropriate:
•	A serious instance of misconduct but where a lesser sanction is not sufficient
•	Conduct which is not fundamentally incompatible with continuing to be a registered doctor
•	No evidence of harmful deep-seated personality or attitudinal problems
•	No repetition of behaviour since the incident
•	The Panel is satisfied the doctor has insight and does not pose a significant risk of repeating the behaviour ”
The Panel has found that your actions in relation to Ms McAthey were inappropriate, inadequate, irresponsible, not in the best interests of Ms McAthey or her baby and below the standards which could reasonably be expected of a competent obstetrician. However, the Panel accepts that your misconduct is in relation to a single case, involving one patient over a short period of time.
The Panel has been informed that there is no evidence to suggest that your failings have been repeated or that you have been the subject of any further complaint in relation to any other aspect of your clinical practice. You have apologised for your actions and stated that you deeply regret your error and live with it every day of your life. You are well aware of the effect your error has had on Ms McAthey and her partner, Mr Manson.
The Panel has had regard to all the evidence put forward in mitigation including the bundle of supportive testimonials in which you are described as a highly skilled and competent obstetrician, whose management of patients is appropriate, timely and well executed. The Panel has borne in mind the oral evidence of Mr Pitman, Consultant Obstetrician and Gynaecologist, who has been your supervising Consultant for the last twelve months. Mr Pitman commends your clinical skills. He stated that you are an exemplary Specialist Registrar and in his opinion you are in the top ten per cent of Specialist Registrars in the Wessex Deanery area.
The Panel has considered the Educational Supervisors Report for RITA (Record in Training Assessment) and the TO2s (Team Observations Reports) which have been completed during the course of your specialist training. These also support the view that you are a highly skilled and competent obstetrician.
The Panel accepts that the factors as set out in the Indicative Sanctions Guidance on pages S1-14 are met. It has, therefore, determined that it is appropriate and proportionate to impose a period of suspension on your registration. The Panel has concluded that this is necessary in view of your serious misconduct, in order to send out a signal to you, the profession and the public as to what is regarded as unacceptable behaviour. The Panel considers that it is acting in the public interest, to maintain public confidence in the profession and to declare and uphold proper standards of conduct and behaviour.
The Panel has also taken into account the interests of your patients, and that aspect of the public interest which makes it desirable to permit an otherwise competent doctor to return to practice at the first reasonable date consistent with marking the seriousness of your misconduct. For all these reasons, the panel has determined to suspend your registration for a period of one month, which it considers is proportionate and appropriate in all the circumstances.”
(E) The Appeal
24.	On the present appeal it is argued on Dr Azzam’s behalf that the findings of the Panel were wrong in four principal respects. First, it is said that the hearing was procedurally unfair by reason of the inclusion of paragraph 4 i. Secondly, it is argued that the factual findings were wrong, principally with regard to the findings of “irresponsibility” on Dr Azzam’s part and also because of the findings adverse to him in respect of allegation 4 i. Thirdly, it is submitted that the finding of impairment to practise was wrong. Fourthly, it is said that the sanction was excessive. 
25.	In broad terms I accept the submissions of Miss Callaghan for the GMC, as to the proper approach for the court on an appeal under Section 40 of the Act, which were not disputed by Mr. Forde QC (with whom Mr De Bono appeared) for Dr Azzam. These principles are well established and appear most recently from GMC v Meadow [2007] QB 462, Raschid & anor v GMC [2007] 1 WLR 1460 and Gupta v GMC [2007] EWHC 2918 (Admin). The principles are:
(1) The panel is concerned with the reputation and standing of the medical profession, rather than with the punishment of doctors;
(2) The judgment of the panel deserves respect as the body best qualified to judge what the profession expects of its members in matters of practice and the measures necessary to maintain the standards and reputation of the profession;
(3) The panel’s judgment should be afforded particular respect concerning standards of professional practice and treatment;
(4) The court’s function is not limited to review of the panel decision but it will not interfere with a decision unless persuaded that it was wrong. The court will, therefore, exercise a secondary judgment as to the application of the principles to the facts of the case before it.
26.	To this list one can also add that the Panel is entitled and bound to consider aspects of the public interest that arise in any case: see e.g. R (Harry) v GMC [2006] EWHC 2050 (Admin).
27.	I shall deal with the issues on the factual findings first; secondly, with the “impairment” question; thirdly, with sanction; and fourthly, with allegation 4 i. It seems to me to be more convenient to concentrate initially on the facts of the present case before looking at the allegation about the Mahoney case and its effect on the hearing as a whole. 
28.	As will be seen hereafter, I consider that this additional allegation has served only as a distraction both for the Panel and for this court. I am firmly of the view that Mr De Bono’s application to strike it out should have been allowed. As it was, the Panel derived little from it. It found that Dr Azzam’s conduct was inappropriate and fell below the standards to be expected of a competent obstetrician. It rejected the more serious allegations arising out of this aspect of the case. On the question of impairment of fitness to practice, the Panel referred to allegation 4 i and to its findings. It said that it criticised Dr Azzam’s lack of learning from the Mahoney case but did not feel that the error was serious. The point seems to have had no material bearing on that question or on the question of sanction. 
(F) The appeal on the facts
29.	The issue here is whether the Panel was entitled and justified on the evidence to find that Dr Azzam had acted/failed to act “irresponsibly”. 
30.	Dr Azzam was charged with a series of allegations in paragraph 6 of the statement of charges that his actions or omissions were a) inappropriate, b) inadequate, c) irresponsible, d) not in the best interests of the Mother or her baby, and e) below the standards which could reasonably be expected of a competent obstetrician. Dr Azzam admitted all but c), “irresponsibility” in respect of most of the allegations. 
31.	The question of “irresponsibility” was treated throughout as a conclusion of fact to be drawn by the Panel having made its primary findings. It does not seem to have been treated as a question of law, as to the meaning of the term “irresponsible”. The Panel was addressed on that basis by both Counsel, but both argued the case on the basis that the word “irresponsibility” connoted a degree of “recklessness”: see the Transcript D2/55D and 61C-D (Volume 2 of the Court bundles pp. 440 and 446, 2/440 and 446). The Panel accepted that approach, as it seems from its findings on the “impairment” issue where it said (1/65),
“The Panel has found two areas of your misconduct to be irresponsible, a term which includes a degree of recklessness…”.
32.	Dr Maresh was questioned by Mr De Bono about his approach to the word “irresponsible” in this case. His evidence was as follows (2/440):
“Q If you take one definition of “irresponsible”, in other words the definition that you act irresponsibly if being the person with ultimate responsibility you do not act as you should, then in the vast majority of cases of clinical negligence, where a doctor acts below the standard of a reasonably competent doctor, on that definition a doctor is acting irresponsibly?
A Yes.
Q On the factual scenario that I am putting to you, you would not be using “irresponsible” in the same way as “reckless”?
A No, I do not think that I would use the word “reckless”. I would not use the word “reckless” to describe his actions, no. That implies that he had some knowledge, in my mind, that there was a problem and he did not act despite some knowledge there was a problem.”
33.	A little earlier, however, at the start of this series of questions he had said,
“In a sense it is how you use your words, is it not? That I guess is for the Panel rather than for me.”
34.	In my judgment, the problem here is that lawyers have a clear view of the meaning of “recklessness” as a legal concept, particularly in the criminal law, as involving a wilful shutting of the eyes to known risks and carrying on with the criticised conduct notwithstanding such knowledge. In the present case, the allegation was that Dr Azzam had been irresponsible, which the Panel was prepared to accept included a degree of recklessness. However, it was for the Panel to determine whether Dr Azzam had behaved irresponsibly as a doctor as a matter of overall judgment of the facts in the light of the primary facts as found. The Panel had to exercise its judgment concerning standards of professional practice and treatment: see paragraph 20(3) above. 
35.	It concluded that the review of the Mother at 1615 had been irresponsible, and that, even with the view that the CTG trace was “suspicious”, Dr Azzam had irresponsibly failed to ensure that Dr Ibrahim was aware of the seriousness of the situation. It had the evidence of Dr Manesh to help it reach a conclusion. However, it was in my view very much a matter for the panel to determine the question of whether Dr Azzam had behaved irresponsibly on a review of all the facts. It was, therefore, entitled to take the view that a cursory examination of the CTG trace and the resultant inadequate overall review of the Mother amounted to “irresponsibility” on the part of Dr Azzam. It was entitled to take a similar view of his failure properly to inform Dr Ibrahim about the situation on handover. 
36.	The Panel was, in effect, making a finding of a serious failure of duty which deserved to be characterised as “irresponsible”. This would not be to say that every failure of professional duty or every act of negligence on the part of a doctor is “irresponsible”. In essence, I agree with the submissions of Miss Callaghan, who appeared for the GMC before me, that the Panel was entitled on the material that was before it to find that Dr Azzam’s conduct had been irresponsible, as argued by her in paragraphs 39 and 40 of her written argument.
37.	As a result, I do not consider that the challenge to the Panel’s findings on the facts has been made out.
(G) Impairment of Fitness to Practise
38.	By Section 35D(2) of the Act where a Fitness to Practise Panel finds that a person’s fitness to practise is impaired  it may, if it thinks fit, direct the person’s name to be erased from the register, direct that his registration be suspended for a period not exceeding 12 months or may direct that the registration be subject to conditions for a period not exceeding three years. 
39.	Impairment of fitness to practice is not defined in relation to Section 35D. However, in Section 35C, which concerns decisions by the Investigation Committee of the GMC of whether allegations of unfitness should be referred to a Panel, the following is to be found: 
“A person’s fitness to practise shall be regarded as “impaired” for the purposes of this Act by reason only of –
(a) misconduct;
(b) deficient professional performance;
(c) a conviction or caution in the British Isles for a criminal offence, or a conviction elsewhere for an offence which, if committed in England and Wales, would constitute a criminal offence;
(d) adverse physical or mental health; or
(e) a determination by a body in the United Kingdom responsible under any enactment for the regulation of a health or social care profession to the effect that his fitness to practise as a member of that profession is impaired, or a determination by a regulatory body elsewhere to the same effect.”
The parties accepted that this exclusive definition in Section 35C(2) is also applicable by implication to the construction of section 35D(2) concerning Fitness to Practice Panels.
40.	 In Meadow v GMC [2007] QB 462, 481H Sir Anthony Clarke MR said this, 
“In short the purpose of FTP proceedings is not to punish the practitioner for past misdoings but to protect the public against the acts and omissions of those who are not fit to practise. The FTP first looks forward not back. However, in order to form a view as to the fitness of a person to practise today it is evidence that it will have to take into account of the way in which the person concerned has acted or failed to act in the past.”
41.	A statement to similar effect is found in the judgment of Silber J in Cohen v GMC [2007] EWHC 581 (Admin) in the following terms: 
“It must be highly relevant in determining if a doctor’s fitness to practice is impaired that first his or her conduct which led to the charge is easily remediable, second that it has been remedied and third that it is highly unlikely to be repeated.”
This decision post-dated the Panel’s decision in the instant case and Miss Callaghan initially opposed it being taken into account on this appeal. In argument, however, I think I persuaded her that as this was merely a point of law, it should properly be taken into account by me.
42.	In the light of these authorities, it is submitted by Mr. Forde for Dr Azzam that the task of the Panel was to decide whether Dr Azzam’s fitness to practice “is impaired”, i.e. was it impaired at the date of the hearing, looking forward in the manner indicated by the Master of the Rolls and Silber J. This approach is accepted by Miss Callaghan: see paragraph 52 of her skeleton argument. However, she argues that Rule 17(2)(j) provides that “the FTP panel shall receive further evidence and hear any further submissions from the parties as to whether, on the basis of any facts found proved, the practitioner’s fitness to practice is impaired” (emphasis added). In other words, she says, the task for the Panel at the impairment stage is, to determine primarily whether the facts that they found proved at stage 1 raise the question whether the doctor concerned should continue to practice without restrictions on his or her registration: see paragraph 53 of the skeleton argument. 
43.	In fact, Mr De Bono applied to have the testimonial evidence admitted at the fact finding stage. His application was successful to a limited extent in that the Legal Assessor advised the Panel that the evidence could be relevant as “character evidence”. He advised, in terms similar to the direction as to good character given to a jury in a criminal trial, that the material could be relevant to Dr Azzam’s credibility and as indicating that he might be less likely than otherwise to act as he was alleged to have done in this case. The Panel decided to admit the material on that basis. It is clear, however, that it was not then directing attention to the question of fitness to practice but simply to whether the individual allegations were proved.
44.	It seems to me that, in the light of the authorities cited, it must behove a FTP Panel to consider facts material to the practitioner’s fitness to practice looking forward and for that purpose to take into account evidence as to his present skills or lack of them and any steps taken, since the conduct criticised, to remedy any defects in skill. I accept Miss Callaghan’s submission that some elements of reputation and character may well be matters of pure mitigation, not to be taken into account at the “impairment” stage (paragraph 54 of her skeleton argument). However, the line is a fine one and it is clear to me that evidence of a doctor’s overall ability is relevant to the question of fitness to practice. Even if Miss Callaghan is correct as to the construction of rule 17(2)(j) (which I doubt, but do not have to decide) the rule clearly envisages the admission of relevant further evidence at stage 2. The panel must consider that evidence (in the same manner as any other evidence received) and weigh it up, decide whether to accept it and then to determine whether, in the light of the further evidence that it does accept and the facts found proved at stage 1, the practitioner’s fitness to practise is impaired.
45.	The evidence adduced consisted of a 38 page bundle of testimonials setting out in very complimentary terms the writers’ assessments of Dr Azzam’s skill as an obstetrician. It included a testimonial from Dr Martyn Pitman, a consultant obstetrician and gynaecologist at the Royal Hampshire County Hospital at Winchester, Dr Azzam’s superior at the date of the hearing. That testimonial included the following:
“Mr Hussam (Sam) Azzam  has been employed in our department as a Senior Specialist Registrar in the field of Obstetrics and Gynaecology for the last 10 months. I have been his supervising Consultant throughout this time. He had previously been on the Wessex Regional Specialist Registrar rotation programme and had passed his annual appraisals with merit. No concerns had been expressed by his previous employers in this region regarding his care of patients or fitness to practice in this field.
In his time in our Unit Sam’s standard of work, diligence and care of patients has, in my view, been exemplary in both Obstetric and Gynaecological disciplines. His level of knowledge and clinical skills, particularly in his area of special interest (Obstetrics and Labour Ward management) are well above the level which we currently see in trainees of his level of seniority. His CTG interpretation ability is now, in my view, significantly better than many of his peers. He now uses these skills to teach junior members of the Obstetric and Midwifery staff. … 
… Sam informed me about the impending GMC investigation involving him shortly after commencing work here in Winchester. We have discussed the cases in detail. He has insight into the criticisms of his management, fully accepts that there were significant deficiencies but is deeply upset that this could now involve assessment of his fitness to practice. I have absolutely no concerns about his aptitude and ability to continue practicing in this field. To this end I am currently supporting him in applications to obtain a Consultant post in this speciality. I do this without reservation and believe that he will excel in this role. …”
46.	Dr Pitman also gave oral evidence to the Panel which included the following: 
“De Bono: Do you have any concerns about Dr Azzam’s ability as an obstetrician based on what you know about him or your experience of him?
Pitman: I have absolutely no concerns about his willingness, aptitude and ability to make the next step in to the consultant grade. My biggest concern, depending on the decision process of the Panel today, is if a trainee who has passed through a training programme in one of the most highly respected obstetric and gynaecological training regions in this country is found having had four years flawless training in this region to be found now by the GMC in any way as being unfit to practise, that casts a major concern in both my mind and I am sure the entire speciality’s mind as to how the GMC would respect and value structured training programmes at specialist registrar level if somebody can pass through without any difficulty and now on the basis of clinical cases that occurred over four years ago can be found to be in any way deficient in his current practice”
47.	None of this evidence appears to have been contested and there seems to have been no reason why it should not have been accepted by the Panel at face value. Of course, it was for the Panel to decide the weight to be attached to it, in the light of the statutory test to be applied.
48.	I have already set out the Panel’s principal finding on the “fitness to practise” question. It will be recalled that it gave “little weight” to the testimonial evidence since it found that the matters found proved at stage 1 represented such a departure from the acceptable standard that those issues did “not affect the Panel’s decision”.  
49.	Miss Callaghan submitted that the Panel was entitled to reach that conclusion, even in the face of the strength of the additional evidence, since some cases were of such gravity that a panel is entitled to find fitness to practise impaired regardless of whether any mistake has been remedied. She gave the example of a case where a doctor might be found to have raped a patient. However, it is difficult to see how such misconduct could be “remedied” in any relevant sense. She submitted further that Silber J in Cohen had placed importance not only on the ease with which the criticised conduct could be remedied but also on the evidence that he had remedied the errors and was unlikely to repeat them: see paragraphs 7 and 8 of Miss Callaghan’s supplementary skeleton argument.
50.	It is difficult to see the manner in which Dr Azzam could have remedied the specific conduct for which he was criticised. Nothing that he could do or the Panel could do or this court can do can reverse the tragic effect of Dr Azzam’s error or errors. All that Dr Azzam could do with regard to “fitness to practise” was to be aware of the mistake and to do all in his power to learn from it. In my judgment, the testimonial evidence and, in particular, the evidence of Dr Pitman, an expert in this field, demonstrated that he had done just that.
51.	The Panel was concerned with an error or errors which it considered to have been irresponsible. Whether it is to be seen as a single error with inevitable consequences (as Mr Forde submitted) or a series of errors between 1615 and 1635 on that one day (as Miss Callaghan submitted), it was not a rape or misconduct of that kind. The Panel was concerned with a serious error of professional judgment over a limited period. The decisions in Meadow and Cohen required the Panel to look forward and to consider in the light of that and of the evidence as to the doctor’s conduct and ability demonstrated in the intervening period whether his fitness to practise was impaired by the events over 20 minutes on 1 September 2003.
52.	In my judgment, it was quite impossible for the Panel to afford only “little weight” to the evidence that it heard and read at stage 2. Giving all respect to the experience of the Panel in hearing and determining medical conduct matters, the evidence of Dr Azzam’s rehabilitation was outstanding and uncontested. It required to be given substantial weight in deciding whether the doctor’s fitness to practice was truly impaired for the future. In failing to do that I consider the Panel’s decision at stage 2 was flawed.
53.	If proper weight had been given to the evidence of Dr Azzam’s actions to remedy his deficiencies and his then current ability and skill, I consider that the Panel could not have found that his fitness to practise was still impaired as at October 2007.
54.	For those reasons, I would quash the Panel’s finding in this respect.
(H) Sanction
55.	In the circumstances, the sanction imposed on Dr Azzam cannot stand and must also be quashed. However, as the issue has been fully argued on the hypothesis that his fitness to practise was impaired, I ought briefly to express my view upon the sanction on that hypothesis.
56.	The submission for Dr Azzam was that the correct course would have been to impose no sanction in exercise of the Panel’s discretion under Section 35D of the Act.
57.	Part of the argument on sanction raised on Dr Azzam’s behalf was that the Panel may have acted upon unpublished training guidance issued by the GMC in 2006 which included advice that, following a finding of impairment, a panel should only decide to impose no sanction “in exceptional circumstances”. In response in her supplementary skeleton argument, Miss Callaghan argued that, on the facts, this unpublished material could not have played any part in the decision of the Panel in this case. In the light of this material, Mr. Forde did not pursue his argument on this point.
58.	The principal argument for Dr Azzam was that the sanction was disproportionate. It was argued that if the hearing had taken place earlier the likely result would have been the imposition of conditions: s. 35D(2)(c) of the Act. It was said that, as conditions were impractical and unnecessary in the light of the situation at the date of the hearing, the Panel had gone up the sanctions scale and imposed a period of suspension. However, the Panel expressly rejected such a suggestion: see the finding at bundle 1 tab 5 p. 70.
59.	The Panel’s view was that, because of the seriousness of the misconduct found proved at stage 1, a decision to impose no sanction would have been insufficient and not in the public interest. The Panel quoted the GMC’s Indicative Sanctions Guidance stating that,
“Suspension can be used to send out a signal to the doctor, the profession and public what is regarded as unacceptable behaviour.”
This seems to have been the Panel’s guiding principle on sanction. It is repeated on the    next page of the finding.
60.	The only purposes that a suspension could serve in this case were the punishment of the doctor and/or the public interest in the reputation and standing of the medical profession. In the latter case, the purpose could only be served by demonstrating that a doctor found to have committed an act of serious professional misconduct could only expiate that misconduct by receiving a punishment. No protection of the public from incompetence was required to be addressed by a period of suspension.
61.	Miss Callaghan submits that the Panel directed itself in accordance with the Indicative Sanctions Guidance; it properly took into account the short period over which the misconduct had occurred in a single case and the evidence of Dr Azzam’s current reputation as a skilled and competent obstetrician. She argues that the Panel was entitled to reach the decision that it did.
62.	The judgment of the Master of the Rolls in Meadow states clearly that the purpose of FTP proceedings is not to punish but to protect the public against acts and omissions of those who are not fit to practise. The only protection of the public that a suspension could have achieved in this case was some form of deterrence exercised on doctors by knowing the possible consequences of misconduct of this type. The public, as patients, did not need protection from Dr Azzam. On the contrary, on the uncontested evidence, it needed his professional skill.
63.	Accordingly, if the point had arisen, I would have quashed the sanction imposed by the Panel in any event.
64.	I do not consider it appropriate to give any further warning to Dr Azzam, as Miss Callaghan invited me to do if the finding of impairment was reversed. In my judgment, the findings of the Panel on the facts are sufficient warning to him. He has acted upon that warning and has learnt from this tragic case for his future practice.
(I) Allegation 4 i.
65.	I return to this allegation and the points arising out of it.
66.	It has been argued on Dr Azzam’s behalf that the hearing before the Panel was rendered unfair by the inclusion of this allegation. 
67.	It was argued by Mr De Bono before the Panel that the allegation should be struck out. It had only surfaced three weeks before the hearing. It was submitted that the inclusion of it was unfairly prejudicial and had no material probative value. It was pointed out that the GMC’s own expert had concluded that Dr Azzam had not been at fault in that case. The allegation seemed to be based simply upon a contention that Dr Azzam should have been “sensitised” as to the importance of CTG traces.
68.	The GMC submitted that the allegation should be before the Panel as background to the other allegations. The instant case was about the misinterpretation of a CTG trace. It was submitted that it was reasonable to consider whether Dr Azzam had learnt from the earlier incident. It was further argued that it was fairer to include the matter as an express allegation than for the matter to emerge in cross-examination of Dr Azzam.
69.	The Panel decided that the allegation might be relevant to its consideration of the case. (It did not state why this might be so.)  Its decision was that it had to decide first whether the additional allegation was proved on the facts and then to decide on its relevance and weight. It concluded that “accordingly” the inclusion of the allegation was not unfair or prejudicial.
70.	Before turning to the other issues, it seems to me that the point taken on behalf of the GMC that the matter might have been elicited in cross-examination in any event would depend on whether the questions to be asked were relevant and not excessively prejudicial. The same issue would have arisen at that stage as the one that had to be decided on the “strike out” application. Were the questions relevant and did they seek to raise matters that were more prejudicial than probative?
71.	In my judgment, the Panel were wrong to permit this allegation to be pursued. First, it was common ground that Dr Azzam was not to be criticised for anything he did or did not do in the Mahoney case. Secondly, therefore, it is far from clear what it was he was supposed to have learnt from that case. Thirdly, no particulars were ever given of what the GMC contended that he should have learnt. (In the end, the Panel found that Dr Azzam should have consulted his training supervisor to find out why he had been wrong and to have learnt from that: see bundle 1 tab 5 p. 62. What he was supposed to have learnt in that way was never identified.) Fourthly, the cases were materially different in various respects, as pointed out in the skeleton argument for Dr Azzam, and no clear case was ever made as to what should have been learnt from the earlier case that was relevant to the later case. Dr Azzam could not know what evidence about the earlier case he was required to adduce to meet the allegation. Fifthly, it seems to me to be clearly prejudicial and of little probative value to bring before the Panel another case with a tragic result in which Dr Azzam’s conduct had no relevance to the outcome. Sixthly, Dr Azzam’s view in the Mahoney case was that urgent intervention was necessary; he was overruled by superiors. In the present case, he was being criticised for not intervening urgently. 
72.	Having left the allegation on the charge sheet, no evidence before the Panel has been shown to me on this appeal that bore on the question of what steps Dr Azzam was supposed to have taken in order to learn from the Mahoney case or what he might have learnt from taking such steps, either by reference to his training supervisor or otherwise. In the end, I do not consider that there was material to support the allegation. However, I am not satisfied that the hearing was rendered unfair as a whole by reason of this allegation having been included. The thrust of the complaint was in relation to the allegations concerning this case. The Panel attached little weight to its findings on this allegation in the end. It does not seem to me that it made the difference in either the overall factual decision, the decision on fitness to practise or on sanction.
(J) Conclusion
73.	For the reasons given, I allow the appeal against the decisions of the Panel on stages 2 and 3 of the case. I quash the decision that Dr Azzam’s fitness to practise was impaired and quash the sanction imposed.