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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Holton v General Medical Council [2006] EWHC 2960 (Admin) (23 November 2006) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2006/2960.html Cite as: [2006] EWHC 2960 (Admin)

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		23/11/2006

Stanley Burnton J :

Introduction

1. This is an appeal by Dr Andrew Holton pursuant to section 40 of the Medical Act 1983 against the determination of the Fitness to Practise Panel ("the FTP Panel" or "the Panel") of the GMC made on 26 January 2006 by which it found that the standard of his professional performance had been seriously deficient and directed that his registration should be subject to conditions for a period of 3 years.
2. This case is unusual because of the contradiction between the finding of the FTP Panel and that of the Assessors who had been appointed to consider the standard of Dr Holton's professional performance. The Assessors had concluded that his professional performance had not been seriously deficient. The case raises important issues as to the matters to be taken into account by the FTP Panel in deciding whether a doctor's performance has been seriously deficient. It was the difference between the matters that the Assessors considered to be relevant and those that the Panel considered relevant that largely accounted for the remarkable difference in their conclusions.
3. The appeal relates to both the finding of serious professional deficiency and the conditions imposed by the FTP Panel.

The facts in outline

4. Dr Holton was appointed as a Consultant Paediatrician with a special interest in neurology by Leicestershire Health Authority in October 1990. He worked at Leicester Royal Infirmary. His work involved him to a significant extent in the diagnosis and treatment of children suspected to suffer from epilepsy.
5. Dr Holton's employer, the University Hospitals of Leicester NHS Trust, suspended him in May 2001 as a result of concerns as to his clinical performance in respect of the diagnosis and treatment of epilepsy. There ensued considerable public disquiet as to what was said to be his over-diagnosing of epilepsy in young children, and his over-prescribing of drugs.
6. His employers provided information to the GMC in August 2001 which was treated by it under section 36A of the Medical Act 1983 as a "complaint" under the General Medical Council (Professional Performance) Rules 1997 ("the Performance Rules"). In addition, the GMC received complaints from the parents or guardians of 16 child patients who were similarly so treated.
7. In consequence, Dr Holton was invited to consent to an assessment of his professional performance by an Assessment Panel under Part 3 of the Performance Rules. He did so. Three assessors were appointed, two medical and one lay. The Lead Assessor was Professor Tim David, a Consultant Paediatrician from Manchester. The second medical Assessor was Dr Lewis Rosenbloom, a Consultant Paediatric Neurologist from Liverpool.
8. The University Hospitals of Leicester NHS Trust also wrote to the Royal College of Paediatrics and Child Health, asking for an independent performance review of Dr Holton's work in relation to his diagnosis and treatment of epilepsy. The College produced that review in November 2001. The review found that Dr Holton's training at the time of his appointment fell:

"a long way short of the requirement of a consultant undertaking a post in paediatric neurology. ...Despite this fact Dr Holton soon found himself dealing with an ever increasing paediatric neurology workload. …

Dr Holton therefore found himself under-trained, overworked and working in professional isolation. The CSAC believes this is a significant mitigating factor in relation to the main findings of this report.

To compound these difficulties it is clear that neurophysiology resources in Leicester are under-resourced. There is often a wait of many weeks for a child to have a standard EEG recording and we found at least one case of a child having to wait over 12 months for a 24 hour EEG recording. Dr Holton therefore found himself having to rely on his own clinical judgment far more than would be generally acceptable in a department dealing with many children with epilepsy."

9. The Overview and Conclusions of the Royal College's report included the following:

"The paediatric neurology CSAC members take the view that Dr Holton is to be regarded as a very hard working and conscientious doctor, who has the support of his colleagues in Leicester. Dr Holton is also clearly a very knowledgeable doctor. … Dr Holton firmly believed that epilepsy could account for many neuro-developmental problems in children and that through early aggressive treatment better long term developmental outcome could be achieved. However, in our assessment of his writing on this subject it is clear that he has taken up his position in a complex scientific debate ahead of available evidence. That is, he has not given appropriate consideration to available scientific literature, which supports consideration contrary to his own view.

Dr Holton's reading and writing on the issue reflect in him a deeply held conviction that many children might be helped by anti-epileptic medication. This had led him over the past several years, in the opinion of the CSAC, to over-diagnose children as having epilepsy and in turn to over-treat their symptoms. The result is a lack of concordance between the medical practice of Dr Holton and his peers practising wholetime in paediatric neurology.

10. However, the report pointed out that the findings had to be put into clinical context. It referred to results presented at the bi-ennial meeting of the European Paediatric Neurology Society in September 2001, which gave figures for misdiagnosis of children suspected of epilepsy. According to the report:

"The expectation, therefore, is that up to 4 out of 10 children with intractable seizures who are not being reviewed by a trained paediatric neurologist who has access to specialist neurophysiology facilities may be wrongly diagnosed. This is in direct concordance with the percentages identified in this review. That is, of the 214 children reviewed at stage 2, 78 (36%) in the view of CSAC members, felt it by far more likely than not that they did not have epilepsy. In our view 67 (31%) of the children we saw were over-treated."

The children whose cases were considered in the review included those treated before 1 July 1997.

11. The review concluded that there were significant areas of concern in Dr Holton's practice. It strongly recommended a period of further professional development.
12. The NHS Trust also commissioned a review into Dr Holton's behaviour towards parents of children treated by him and towards his colleagues. The Report, referred to as "the Behaviour Report", was completed in July 2002. Its authors found a variety of views of Dr Holton. Thus:

"Generally, professional colleagues who worked with Dr Holton on an equal level … found him supportive and effective and considered his advice to be sound."

However:

"Dr Holton was described by some staff variously as obsessive, arrogant, opinionated, irrational, unwilling to listen (some staff and parents), moody, angry and as giving unrealistic expectations to parents. These views were almost always as a result of conflict over patient management and a questioning of Dr Holton's clinical practice."

13. According to the Behaviour Report, "Some staff describe his behaviour in some circumstances as intimidating or bullying." However, "Other staff describe him as very supportive, friendly, thoughtful, respectful and courteous." The conclusions of the Behaviour Report in relation to Dr Holton's conduct towards his colleagues may be summarised by the following passage:

"The gulf between the two sets of opinions concerning Dr Holton were striking and there appears to be no middle ground. For each opinion supporting Dr Holton it was possible to find an opposing view.

Overall it would appear that those who are not in any disagreement with him found him polite, supportive and helpful, while those that found themselves in disagreement with him found him difficult to deal with."

14. There was a similar division between parents and carers of children. The Behaviour Report stated:

"A few letters have been reviewed in which expressions of gratitude and praise in the strongest terms have been described. No attempt has been made to invite additional letters of support, but anecdotally it is understood from some witnesses that several parents continue to speak in support of Dr Holton and his care of their children. Some parents who had concerns nevertheless expressed their admiration for his hard work and dedication."

On the other hand:

"Many parents describe being made to feel belittled and as if they had no right to question Dr Holton if they did air concerns or questions with him.

Many witnesses considered that Dr Holton gave overly-optimistic expectations to parents of their child's likely improvement under his clinical management. As the child's progress failed to achieve the initial promises and where parents became concerned at levels of drug prescriptions, or side effects and raised these issues with Dr Holton, the parent's views changed to observations of dominance, failing to listen and arrogance."

15. The Observations of the Report included the following:

"Whatever the rights and wrongs of Dr Holton's clinical practice, he was on the one hand well respected by many professional colleagues and by his junior doctors, but on the other hand was unable to convince professional colleagues who took issue with him on the subject, of the rationale of his approach.

While many staff interviewed would be happy to work with Dr Holton again, there are members of medical, nursing, and administrative staff who consider that the conflict of personalities are (sic) such that professional relationships with Dr Holton have broken down irretrievably."

16. The Assessors carried out their assessment into Dr Holton's performance between May and September 2003. According to the Lead Assessor, this was one of the longest and most thorough assessments carried out under the Performance Rules. A huge volume of material was considered by the Assessors including more that 250 sets of medical records (including those of the 16 patients whose parents had made specific complaints to the GMC) and portfolio and other information made available by Dr Holton in addition to material provided by his then employers.
17. In September 2003, the Report of an independent review of paediatric neurology services in Leicester, carried out on the instructions of the Regional Director of Public Health, was published. The Report was principally concerned with management and resource issues arising from concerns as to Dr Holton's clinical practice and from his suspension. It assumed that the findings of the Royal College Report were justified. However, the Review provides ample support for the Assessors' statements as to the lack of resources and support for Dr Holton.
18. The Assessors produced their lengthy Report in January 2004, to which I refer below. They graded Dr Holton's professional performance under 15 heads. His performance under all those heads was found by them to have been "Acceptable", apart from "Providing or arranging Treatment" and "Relationships with colleagues/GPs/teamwork", which they graded as "Cause for Concern". (Their definitions of these grades are set out below.) They concluded that Dr Holton's professional performance had not been seriously deficient and that no remedial action was required.
19. However, the lay examiner did not agree that no further action should be taken, and in consequence the case was referred to the Panel. I was told by Miss O'Rourke that such a reference following a positive assessment was unique.
20. Following the completion of their Report, Professor David attended a consultation with counsel instructed by the GMC, who advised on the matters that should be taken into account in assessing whether a doctor's performance has been seriously deficient. On the basis of that advice, the Assessors produced a Supplemental Report, in which, under protest, they gave their conclusions on the basis that factors they had taken into account were to be ignored. I set out below some of the Assessors' views as stated in their Supplemental Report.
21. The case came before the Panel in April 2005. The Panel was composed of two medical and two lay members. The Chair was a Consultant Psychogeriatrican; the other medical member was a retired consultant urological surgeon. The Panel was assisted by a specialist adviser, who was a Consultant Paediatric Neurologist. No complaint is made as to his advice. As a result of the illness of one of the Assessors, the hearing was not concluded until January 2006. There were in all 13 hearing days, at the end of which the Panel retired to consider its decision, which as mentioned above was given on 26 January 2006.
22. Under the Performance Rules, those treated as complainants had a right to attend and make representations to the Panel before the formal opening of the hearing. They did so. Thereafter they were allowed to take no part. The case for the GMC was presented by counsel its behalf. Dr Holton was represented by Miss O'Rourke.
23. The written material before the Panel consisted only of the Assessors' Report (together with its various appendices) and original letters of complaint received and acted upon by the GMC. The Panel did not have available to it much of the source material considered by the Assessors as part of the Assessment. In particular they did not have medical notes for patients or expert advice (in the form of reports) relating to the treatment of any named or identifiable patient. Furthermore, the Panel did not have access to protocols and materials relating to Dr Holton's workplace and conditions (clinic timetables etc.).
24. Professor David, in evidence, maintained his position (as set out in the Assessment Report of which he was the principal author) that he did not believe there had been seriously deficient performance and that no action was required.
25. Dr Holton himself gave evidence on his own behalf and evidence was also adduced on his behalf from the second medical assessor, Dr Rosenbloom and from several witnesses including professional colleagues and patients whom he had treated.
26. The Panel differed from the Assessors' gradings under four heads, namely "Assessment of patients' condition", which they regraded to Unacceptable, "Providing or arranging treatment", which they regraded to Unacceptable, "Communication with patients" and "Respect for patients, trust, confidentiality", which they regraded to Cause for Concern. The Panel concluded that there had been seriously deficient professional performance and imposed conditions on Dr Holton's registration for a period of 3 years.
27. Dr Holton has not resumed his former post. He is retraining as a Specialist Registrar in Neurophysiology.

The grounds of appeal

28. The Notice of Appeal lists no less than 28 grounds for appeal. While there may be cases in which such a number of grounds need to be pleaded and addressed individually, I do not think that this was one. Such a proliferation of grounds risks a loss of focus on the real issues. I propose, therefore, to address the principal issues, as summarised in Miss O'Rourke's opening submissions, on the basis that material subsidiary issues will be considered in the course of dealing with the principal issues. I add that it was not practical to examine all of the material put before the Court relating to all of Miss O'Rourke's submissions in the space of the two-day hearing for which this appeal was estimated.
29. The principal issues are the following:

(a) Did the Panel wrongly take into account the professional performance of Dr Holton before the date when section 36A and the Performance Rules came into force, namely 1 July 1997?

(b) In determining whether Dr Holton's performance was seriously deficient, did the Panel wrongly leave out of account matters which were considered by the Assessors to be and were relevant?

(c) Did the Panel err in departing from the conclusions of the Assessors when they had insufficient competence and/or there was no or no sufficient evidential justification for them to do so?

(d) What was the status of the evidence of lay witnesses? Among other objections made to their evidence, Miss O'Rourke submitted that because the contemporaneous medical records relevant to their evidence were not before the Panel they could not be effectively cross-examined. In addition, some of their evidence, she submitted, related to events before 1 July 1997.

(e) Were the conditions imposed by the Panel on Dr Holton's registration inappropriate and excessive?

30. Mr Englehart QC submitted that the Panel correctly applied the law and were entitled and right to decide as they did.
31. It can be seen that the appeal raises two important questions as to the construction of section 36A, namely:

(a) whether the performance of a doctor before the section came into force on 1 July 1997 can be taken into account by a Panel in proceedings under that section.

(b) what matters may be taken into account by a Panel when deciding whether a doctor's performance has been seriously deficient.

The statutory provisions

32. So far as is relevant, section 36A is 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.

(2) Where a fully registered person, whose registration is subject to conditions imposed under any provision of this section by the Committee on Professional Performance[or under section 41A by the Interim Orders Committee or the Committee on Professional Performance, is judged by the Committee on Professional Performance] to have failed to comply with any of the requirements imposed on him as conditions of his registration the Committee may, if they think fit, direct that his registration in the register shall be suspended during such period not exceeding twelve months as may be specified in the direction.

(3) Where the Committee on Professional Performance have given a direction for suspension under any provision of this section the Committee may direct—

(a) that the current period of suspension shall be extended for such further period from the time when it would otherwise expire as may be specified in the direction; or

(b) that the registration of the person whose registration is suspended shall, as from the expiry (or termination under subsection (5)(b) below) of the current period of suspension, be conditional on his compliance, during such period not exceeding three years as may be specified in the direction, with such requirements so specified as the Committee think fit to impose for the protection of members of the public or in his interests;

but, subject to subsection (4) below, the Committee shall not extend any period of suspension under this section for more than twelve months at a time.

….

(6) Where the Committee on Professional Performance have given a direction for conditional registration, the Committee may—

(a) direct that the current period of conditional registration shall be extended for such further period from the time when it would otherwise expire as may be specified in the direction;

(b) revoke the direction or revoke or vary any of the conditions imposed by the direction; or

(c) direct that the registration shall be suspended during such period not exceeding twelve months as may be specified in the direction;

but the Committee shall not extend any period of conditional registration under this section for more than three years at a time.

(By 2005 under transitional Rules the Committee on Professional Performance referred to in section 36A had become the Fitness to Practise Panel sitting as a Performance Panel.)

33. Rule 13(2) of the Performance Rules requires the report of the Assessment Panel to include:

"their opinion on such of the following matters as appears to them to be relevant, that is to say whether-

(a) the standard of the practitioner's professional performance has been seriously deficient;

(b) the standard of the practitioner's professional performance is likely to be improved by remedial action;

(c) the practitioner should limit his professional practice, or cease professional practice;

(d) no further action needs to be taken on the Report

and in each case the Panel's reasons for their opinion."

34. The procedure of the Panel in Performance Hearings is the subject of Part III to Schedule 2 to the Performance Rules. Paragraph 10 is as follows:

The procedure of the Committee at a performance hearing shall be as follows—

(a) the complainant may give evidence to the Committee and the complainant or his representative may address the Committee;

(b) the complainant may be questioned by—

(i) the Solicitor,

(ii) the practitioner or his representative,

(iii) members of the Committee, the legal assessor and the specialist adviser;

(c) the Solicitor shall present the case to the Committee and may call and question his witnesses including persons called by the Committee under paragraph 9(3) of Schedule 1;

(d) the Solicitor's witnesses may be questioned by—

(i) the practitioner or his representative,

(ii) members of the Committee, the legal assessor and the specialist adviser,

(iii) the Solicitor for a second time;

(e) the practitioner may give evidence to the Committee—

(i) on any matter relating to the provision of these Rules under which the referral was made to the Committee, and

(ii) as to whether the standard of his professional performance is seriously deficient

and may call and question his witnesses;

(f) the practitioner and his witnesses may be questioned by—

(i) the Solicitor,

(ii) members of the Committee, the specialist adviser and the legal assessor,

(iii) in the case of his witnesses, the practitioner for a second time;

(g) the practitioner or his representative may address the Committee as to the matters referred to in subparagraph (e) of this paragraph;

(h) the Committee shall decide—

(i) whether the standard of the practitioner's professional performance is seriously deficient; and

(ii) if so, whether to make a direction under paragraph (a) or (b) of section 36A(1) of the Act.

The Assessors' Report in detail

35. In their Report, the Assessors referred to the very great hostile publicity that had been generated by the case, with "very extensive and prolonged local and national media coverage, leading to a public outcry" and even reported (and if correctly reported, on the face of it inappropriate) ministerial involvement.
36. The Assessors adopted the explanation of "serious deficiency" given by the GMC in its guidance, 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". They continued:

"This means that the GMC will question a doctor's registration if it believes that the doctor is, repeatedly or persistently, not meeting the professional standards appropriate to the work that the doctor is doing – especially if the doctor might be putting patients at risk. This could include failure to follow the guidance in the GMC's booklet "Good Medical Practice."

37. The Assessors considered three standards that were possibly applicable to Dr Holton's work, namely that of a consultant paediatrician with a special interest in neurology; that of a consultant paediatric neurologist; and that of a consult paediatrician. They rejected the first of these standards on the basis that Dr Holton had never trained as a paediatric neurologist or as a consultant paediatrician with an interest in neurology. They added:

"The job description implied that candidates who were not trained might wish to apply for the post, and that opportunities for training would exist after the successful applicant had taken up the appointment and started to work. The lay reader would be entitled to be taken aback at the concept of a doctor being appointed to a post for which he or she had not been trained. The implication was that an incompletely trained candidate could "pick up" the necessary additional training after starting work in the post. This was somewhat akin to saying that an ordinary motor car driver could start work driving HGV lorries without any training in driving a lorry. However at the time of Dr Holton's appointment it was by no means unique for job descriptions for Consultant posts to allow for the appointment of untrained or incompletely trained applicants. What happened in Leicester was no different in this regards from other places in the UK.

What was possibly different about Dr Holton's case was that the employing authority apparently took no responsibility for the training provided after Dr Holton's appointment. There appears to have been no formal training plan, no clear educational aims identified, and no goals or end-points established. No-one was appointed to supervise the process. There was no mechanism to ensure progress was being made, and there was no mechanism to ensure that adequate training had been achieved. Worse still, Dr Holton's opportunities to receive the necessary training were curtailed because of the increasing pressures from his work."

38. The Assessors gave the following reasons for rejecting the application of this standard, namely:

"at the time of appointment, Dr Holton was not adequately trained in paediatric neurology. Indeed he had not received any full time exposure to paediatric neurology during either his registrar or senior registrar training.

even after appointment, Dr Holton did not receive any full-time supervised training in paediatric neurology. What training he did receive was part-time, but without any clear educational goals or end-points. A number of components were omitted altogether.

there was no generally agreed definition of the standard to be expected of a consultant paediatrician with a specialist interest in paediatric neurology when Dr Holton was appointed. How can one apply a standard when no standard existed?

there was no definition of the essential or desirable competencies for such a post when Dr Holton was appointed.

as pointed out by the British Paediatric Neurology Association in an appendix to the report "Review of the Management of Patients with Epilepsy by Dr A Holton Between 1990 and May 2001", Dr Holton:

"never had training as a paediatric neurologist, is to be viewed as a general paediatrician who was practising outwith any formal clinical network, without support from a tertiary centre based paediatric neurologist and also without adequate support frorm neurophysiology facilities for much of the last 12 years."

When considering expectations of Dr Holton's professional performance, it is essential to take into account other major background factors, to be described elsewhere in this report, which would have effectively prevented almost anyone from functioning as a Consultant Paediatrician with an interest in neurology. These factors included, in particular the extreme lack of facilities to investigate patients, the active attempts made by hostile hospital staff to prevent Dr Holton providing a proper standard of written communication, and the vastly excessive workload that Dr Holton had to sustain over a very prolonged period. For example, excluding out-patient clinics extending well into the evening, and excluding all on-call duties (1 in 2 rota), the Assessment Panel calculated from Dr Holton's job plan current at the time of his suspension that he had no less than 9 fixed sessions per week, vastly in excess of recommended duties for a Consultant."

39. Secondly, the Assessors rejected the application of the standard of work to be expected of a consultant paediatric neurologist on the grounds that Dr Holton had not trained as a paediatric neurologist, was not appointed as a consultant paediatric neurologist, and was not given the resources or the professional support normally available to a consultant paediatric neurologist.
40. The Assessors, lastly, concluded that it was inappropriate to apply this standard of work to be expected of a consultant paediatrician, because in the period June 1999 to May 2001 Dr Holton was not actually working in the field of general medical paediatrics. "By that point in his career, his work was solely in the field of neurology." However, during the period which they assumed to be covered by the Performance Rules, i.e., from 1 July 1997 to the date of the Report, Dr Holton's clinical work comprised both general medical paediatrics and neurology. The conclusion reached by the Assessors was that it would be inappropriate and unfair to apply any of the three standards they had addressed in an unmodified form. Their view was that a hybrid standard needed to be applied which encompassed the various facets of Dr Holton's training and duties. They defined it as follows:

"Accordingly, the view of the Assessment Panel is that the standard to be expected of Dr Holton's professional performance should be that of a Consultant Paediatrician who, although untrained in paediatric neurology had, by dint of his special interest, accumulated experience in neurology, almost entirely self-taught and almost totally unsupervised, practising neurology in isolation and in the face of immense difficulties and obstacles to clinical practice, difficulties which must all be taken into account."

41. The Assessors considered that a number of factors had in a major way impinged upon, or adversely affected, Dr Holton's performance. They included:

the nature of Dr Holton's training

the background to Dr Holton's appointment

the working arrangements at the Leicester Royal infirmary and the work patterns in paediatric neurology in the region and in adjacent regions

the RCPH enquiry

subsequent actions taken by those acting on behalf of the RCPCH

the responses of the University of Leicester NHS Trust to the whole situation.

42. The Assessors stated:

"It is self-evident that any assessment of Dr Holton's performance must take into account all the background factors that could have affected his performance, including those listed above."

43. The Assessors made a number of cogent criticisms of the Royal College's Report. The flaws which, in their view, seriously affected it so as to make it of "very limited value" were, in particular, that there had been a confusion of aims, one being the re-examination of Dr Holton's patients, the other being the examination of his professional performance. Secondly, he had been completely excluded from the review process, and not allowed to comment upon, or explain, his management of his patients. Thirdly, the review had been conducted not by general paediatricians, but by paediatric neurologists, who were more fully trained and specialised than Dr Holton. Lastly, the reviewers had included practitioners who had been involved in the care of Dr Holton's patients and were not independent or impartial. The lack of clarity and diagnosis in the report was also criticised.
44. The Assessors tested Dr Holton's medical knowledge and also used objective structured clinical examination (OSCE) as a means of assessing his clinical skills. Dr Holton achieved a high level of performance in the performance tests. In the OSCE tests, Dr Holton "obtained scores ranging in between good and very high indeed at most tasks".
45. The results of the Assessment were set out by the Assessor under a number of headings, taken from Good Medical Practice. They graded Dr Holton's work under each head as either Acceptable, or Cause for Concern, defined by them as follows:

"Acceptable means that the evidence demonstrates that the doctor's performance is consistent with the performance described in Good Medical Practice.

Cause for Concern means that there is evidence that suggests performance may not be acceptable but that there is not sufficient evidence to suggest seriously deficient performance."

46. Although they did not find any aspect of Dr Holton's work to be Unacceptable, they defined that grade as indicating "that there is evidence of repeated or persistent failure to comply with the professional standards appropriate to the work being done by the doctor, particularly where this places patients or members of the public in jeopardy. This is seriously deficient performance." Neither Miss O'Rourke nor Mr Englehart took issue with that definition.
47. Under the heading "Assessment of patient's condition" the overall assessment was "Acceptable". The Assessors said:

"It is a fact that some of Dr Holton's patients with suspected epilepsy were incorrectly diagnosed as having epilepsy. It must be remembered that a high proportion of these cases arose prior to the 1 July watershed. In relation to the assessment of epilepsy, the Assessment Panel identified a number of features:

Prior to his suspension, Dr Holton tended to over-value behaviour problems or educational problems as features of epilepsy. This applied to both patients with established epilepsy and to those whose only problems were behavioural or educational. This was undoubtedly attributable to the unique position he was in, of being exposed to paediatric neurology problems without any formal training, a situation in which false beliefs flourished and became enhanced. It was quite clear from the medical record review that these symptoms were perceived to have markedly improved in a considerable number of patients on new or additional anti-epileptic medication. This response may have in part been a placebo effect, but in some cases it may have been the result of the sedative or calming effect of medication e.g. carbamazepine. Whatever the reason for the initial response, even if it only lasted a few weeks or months, it tended to reinforce a belief that the basic approach was a correct one, and that all that was need was some adjustment or increase in therapy. It is all too easy to see how without training one could find one's over-valued beliefs becoming enhanced. What was missing was a more self-critical and detached approach, a theme that will be touched upon elsewhere in this report.

Prior to his suspension, Dr Holton tended to over-diagnose absences, and tended to interpret normal features of behaviour as being absences.

Prior to his suspension, Dr Holton over-valued epilepsy as an explanation for non-epileptic recurrent episodes (for example abnormal movements).

Prior to his suspension, Dr Holton over-interpreted or incorrectly interpreted some EEG reports, thereby tending to over-diagnose epilepsy.

Dr Holton fully acknowledged his errors in assessment of patients with suspected epilepsy during the initial interview. He also fully acknowledged his errors during the case based discussions. During discussions of individual topics relating to the diagnosis of suspected epilepsy, in the case based discussion, Dr Holton was generally able, without any difficulty, to identify where a diagnosis had been mistaken, and he was also able to explain how his assessment of patients would now differ. It was clear to the Assessment Panel that the Royal College of Paediatrics "Independent Performance Review", by largely excluding Dr Holton from the process, had effectively acted as a bar to progress….

It is important to point out that the patients who were misdiagnosed prior to Dr Holton's suspension were in a minority. The initial impression was indeed negative, the result of a highly biased selection of case records whereby the Assessment Panel was presented with a selected subset comprising the very worst examples of assessment of treatment. However once the Assessment Panel was able to examine a random selection of cases a very different picture was presented, and the Panel was able to see a large number of cases which had been correctly assessed. Indeed even the flawed Trust had indicated that the misdiagnosed patients were in the minority.

The Assessment Panel was careful to examine all other areas of Dr Holton's practice, other than suspected epilepsy, including paediatric neurology and general paediatrics, and overall no significant problems were identified.

The Assessment Panel concluded that [prior to his suspension], Dr Holton had made some errors in the assessment of patients with suspected epilepsy, but that he had fully and freely recognised and corrected these errors. All doctors make mistakes. Few work in an environment quite so unfavourable for the recognition and correction of mistakes, and as explained in the conclusions of this report the Assessment Panel is of the view that the background to Dr Holton's practice was the reason for the delay in recognition of the problems in the assessment of epilepsy. The Assessment Panel's view is that these problems in the assessment of epilepsy were largely not of Dr Holton's making. The GMC Performance Assessment process has demonstrated that Dr Holton has, almost entirely through his own efforts, fully and comprehensively recognised and corrected the problem, and the conclusion of the Assessment Panel is that the overall grading for Assessment should be Acceptable."

48. The second head of Dr Holton's performance was "Providing or arranging investigation". The Assessors found that his performance had been "Acceptable". This conclusion was not revised by the FTP Panel and it is therefore unnecessary to examine it further. I can similarly omit reference to the other 10 heads of work in relation to which the Panel did not differ from the gradings of the Assessors.
49. Head three was "Providing or arranging treatment". The Assessors overall assessment was "Cause for concern". The FTP Panel regraded the assessment to "Unacceptable". Given the importance of the Assessors' grading and their reasons for it, I set it out in full:

"3. Providing or arranging treatment

Overall assessment: Cause for concern

349. It is a fact that some patients who had been diagnosed as having epilepsy, whether this diagnosis was correct or incorrect, were inappropriately treated. In relation to the assessment of epilepsy, the Assessment Panel identified a number of features:

Once epilepsy had been suspected, it was sometimes found that a patient would be left on anti-convulsant medication even if the response to treatment was poor. Whereas in some cases this lack of response was followed by cessation of treatment and re-evaluation of the case, in some patients a sequence of events was set up whereby one or more additional anti-convulsants were introduced.

There was a tendency in some patients to add in multiple anticonvulsant drugs without withdrawal of agents that had not proved beneficial on their own.

There was an unusual readiness to use prednisolone in high dosage, which was regarded as clinically inappropriate.

350. Concern about treatment applied to only a minority of cases that were studied in the Performance Assessment. The Assessment revealed plenty of cases in which Dr Holton's treatment of epilepsy had been acceptable.

351. The Assessment revealed no general concerns regarding Dr Holton's treatment of general neurology patients with the exception of his use of certain untested or unproven therapies.

352. The Assessment provided little data on Dr Holton's treatment of general paediatric disorders, by the limited data available indicated acceptable treatment.

353. Data obtained from clinical colleagues in third party interviews suggested that in general Dr Holton's treatment of patients was acceptable.

354. It became clear to the Assessment Panel that Dr Holton had fully and freely recognised the erroneousness of his treatment of certain patients with suspected epilepsy. During the case based discussions it was evident that he had corrected these errors, and that they would not be repeated. As when discussing Dr Holton's performance in the area of patient assessment, the Assessment Panel's view is that the problems of treatment of epilepsy were largely not of Dr Holton's making, and that it would be quite unreasonable for him to take all of the blame.

355. However there were two other areas of treatment that caused the Assessment Panel some concern. This related to the treatment of patients with other neurological disorders, including those with various encephalopathies, for example after a head injury or after an episode of cerebral hypoxia. The first concern was that it was noted that Dr Holton had a tendency to use vitamin E supplementation in clinical situations (e.g. Charcot Marie Tooth disease – hereditary sensorimotor neuropathy; facial palsy) for which there was no objective evidence that this treatment would be of any value. During the case based discussions, Dr Holton was willing to concede that there was no controlled trial evidence to support the use of vitamin E in the clinical situations in which this agent had been deployed. Dr Holton was also willing to accept the point that when using an unproven and unconventional treatment it would have been highly desirable for the parents to have been given a full explanation as to the unlicensed and unproven status of the drug, and given a choice as to the drug's use. The Assessment Panel nevertheless felt that Dr Holton's residual enthusiasm for the use of this drug in neurological disorders was uncritical and unusual.

356. The second concern was Dr Holton's use of the drug desferrioxamine. Desferrioxamine is an iron-chelating agent, licensed for use in paediatrics to treat acute iron poisoning and to treat patients with chronic iron overload as in for example, thalassaemia. In patients with thalassaemia the need for regular blood transfusions eventually leads to a toxic accumulation of iron in the body. The drug is also used to treat acute iron poisoning in children who have ingested iron compounds. Dr Holton's use of this drug came to the Assessment Panel's attention in a patient on the intensive care unit in whom a CT scan had shown no evidence of intercranial bleeding. Dr Holton nevertheless believed that despite the CT scan findings there might have been intercranial bleeding. This is technically possible; a CT scan does not always detect certain types of intercranial haemorrhage. Dr Holton's concerns, as explained to the Assessment Panel during a case based discussion, was that a hypothetical haemorrhage might have in turn released elemental iron, which in turn might have proved toxic to the brain, and that this warranted treatment with desferrioxamine. Dr Holton was under the impression that there was evidence to support this theory, and that this drug was being routinely used for this purpose in certain centres in the USA. The medical members of the Assessment Panel have investigated these claims. Discussion with paediatric intensive care specialists in the UK and USA indicates that desferrioxamine is not in routine use in acute neurological situations either in the UK or the USA, although colleagues were aware of a few individuals who had been known to use this drug. An examination of the scientific and medical literature indicates that the basis for the use of this drug appears to be some old (>10 years) animal data, unsupported by any controlled studies in human patients. The Assessment Panel felt that Dr Holton's continuing enthusiasm for this unlicensed and untested treatment was uncritical and misplaced.

357. Dr Holton indicated to the Assessment Panel that he acknowledged that there is now a far greater emphasis on evidence based medicine, and the need, where possible, for treatment to be based on controlled studies, The residual concern of the Assessment Panel was the impression, admittedly based on only two drugs, that Dr Holton was fundamentally uncritical about the use of these drugs and was overly enthusiastic about their possible value. One can only speculate, but it is possible that his uncritical streak was a chink in Dr Holton's armour that may have fostered his enthusiasm for a rather over-vigorous and uncritical approach to the drug therapy of epilepsy. The limitations to this conclusion are:

It is based on the use of only two drugs

It is speculative

It fails to take into account the background to Dr Holton's clinical practice, and in particular the fact that he was untrained in paediatric neurology. It is highly likely that had Dr Holton been exposed to proper supervised clinical training in paediatric neurology, then any tendencies to over-value particular approaches would have been exposed to scrutiny and down-regulated.

358. Taking all these matters into account, the Assessment Panel concluded that "Cause for concern" was the appropriate overall assessment for Dr Holton's provision of treatment."

50. The Assessors' overall assessment of "Communication with patients" was Acceptable. They said:

"382. Set against a few examples suggesting that communication was not a strength, the overwhelming body of data obtained in the Performance Assessment indicated that Dr Holton was good at communicating with patients and parents.

383. Positive features that were highlighted included:

Dr Holton checked that patients were happy and understood information

Dr Holton talked to parents on the paediatric intensive care unit with a nurse present. (This is regarded as good practice).

Dr Holton took telephone calls from worried parents and was always available

Parents were given options regarding treatment

Dr Holton would go and talk to parents to obtain a history rather than rely on a history taken by someone else

Dr Holton would listen to the views of parents, nursing staff and a health care assistant before making a decision

Dr Holton was very good at going over information with parents who had learning difficulties

384. In addition, it should be noted that during the phase 2 OSCE examination and the simulated surgery, Dr Holton showed excellent communication and interpersonal skills."

51. Head 13 was "Respect for patients, trust, confidentiality". The Assessors said:

"386. Dr Holton was regarded by his health professional colleagues as very caring and showing great respect for patients and parent, including respect for the need for confidentiality, and the Assessment Panel was provided with ample positive data on these aspects. There was one negative observation, from Sister Brown, who reported that medical records had been left in the corridor outside the clinic room sometimes – she made a habit of putting the notes away if she found them.

387. Set against a suggestion in the complaints of parents that Dr Holton was unwilling to refer patients for a second opinion, the review of the medical records showed that in fact Dr Holton did indeed refer patients for a second opinion when this was appropriate. There is also information to show that he sometimes volunteered to arrange a second opinion when he sensed that a family was unhappy with his care."

52. On 3 December 2004, Professor David, as Lead Assessor, attended the consultation with leading and junior counsel. Following the consultation, the Assessors produced a Supplementary Report. The following passages are relevant:

The conclusion of SDP is not based on selecting one problem and then considering it in isolation. The term SDP, as used in GMC Performance Assessment, is applied only as an overall conclusion when analysing the totality of the assessment.

The suggested conclusion of SDP fails to take into account the fact the performance was acceptable in the majority of the cases of that one condition.

The suggested conclusion of the SDP fails to take into account the fact that the doctor had recognised his error in diagnosis and treatment of this one condition, and had taken effective steps to correct the problem; the performance assessment had demonstrated that the problem had been rectified.

The suggested conclusion of the SDP fails to take into account the fact that the performance was acceptable in the doctor's diagnosis and treatment of all other conditions, both within neurology and within general medical paediatrics.

…

Attention is drawn to the document "Performance procedures; a guide to the arrangement" (GMC, December 2000). Under the heading "Procedures", the guide indicates that the procedures:

"take into account a doctor's individual circumstances and the environment in which he or she works".

The guide also makes specific reference to the doctor's performance being –

"examined in the context of his or her own environment and circumstances".

The question instructs the Performance Assessors to ignore or set aside the Performance Assessment procedures, but the Assessors feel it would be inappropriate to do so. It would be unfair to change the rules after the completion of an assessment.

…

It is self evident that assessors cannot perform a valid assessment of professional performance whilst intentionally excluding the doctor's individual circumstances (including his training) and the situation in which he was or is working.

53. The Assessors were instructed to answer 6 questions on the basis that the test to be applied was objective, leaving out of account any features relevant purely to the doctor himself, and that the standard of performance was a professional standard appropriate to the work actually being done by the doctor disregarding his formal job title. The Assessors protested against this. They said:

"It would appear that the Performance Assessors are now being instructed to disregard the GMC guidance. The Performance Assessors reiterate that they feel that this represents a significant and inappropriate deviation from the GMC Performance Assessment procedures."

54. In relation to the standard to be applied, they said:

"Thus in one sense what the report did in fact (at least in part) satisfied the second instruction, concerning disregarding the formal job title, though it did take into account the various circumstances and factors which directly affected Dr Holton's performance.

…

The Assessment Panel's response to these matters is that by excluding certain important factual data from consideration, bias is introduced, and any resulting opinion ceases to be objective and the whole process of Performance Assessment loses integrity. Whilst it is plain that the Assessment Panel is of the view that the stated preconditions to the 6 questions are flawed, the Assessment Panel recognises that ultimately its duty is to assist the CCP, and with the preceding caveats in mind the 6 questions are answered as follows… ."

55. However, on the basis instructed by the GMC, the Assessors answered the questions put to them as follows:

"Q1. What would the Panel's assessment be of the 15 specified categories of Good Medical Practice?

Of the overall gradings of the 15 categories of the Good Medical Practice, the overall grading would remain unchanged for 14. However, for "providing or arranging treatment" the overall grading would change from "Cause for Concern" to "Unacceptable". This would be on the basis of the problems in the area of epilepsy diagnoses and management prior to Dr Holton's suspension, which practice would be viewed that much more seriously if one excludes all the facts concerning training, lack of resources (e.g. diagnostic and clerical), single handed practice, professional isolation, immense work overload, the need to deliver a general paediatric service as well as manage neurology patients, and a hostile work environment.

Q2. What would the Panel's response be to the 4 questions (a) (b) (c) (d) in Rule 13 (2)?

In the report, the 4 questions were originally dealt with as follows:

1. Seriously deficient performance? No

2. Is remedial action likely to help? Remedial action not needed

3. Should practice be limited? No

4. Is further action needed? No

The answers to questions 2-4 would be unchanged, but he answer to question 1, "Has the standard of the practitioner's professional performance been seriously deficient?" would change from "No" to "Yes". This change would be on the basis of the problems in the area of epilepsy diagnosis and management prior to Dr Holton's suspension, which practice would be viewed that much more seriously if one excludes all the facts concerning training, lack of resources (e.g. diagnostic and clerical), single handed practice, professional isolation, immense work overload, the need to deliver a general paediatric service as well as manage neurology patients and a hostile work environment.

Regarding remedial action, the position is that Dr Holton has already recognised and accepted the problems relating to his previous approach to epilepsy, and the Performance Assessment demonstrated that he has already taken the necessary remedial action.

Regarding the need to limit practice or take further action, the answers remain unchanged at "No".

Q3. Would the Panel's overall assessment differ from the formal report if the standard was to be that of a Consultant Paediatrician with a special interest in neurology?

This question is unanswerable as it stands, because it conflicts with the immediately preceding instruction which is that the formal job title should be disregarded.

If the words "disregarding his formal job title" are excised from the preceding instruction, then the answer would be the same as the answers to the immediately preceding Questions 1 and 2 (see paragraphs 54 to 60, 71 above)"

56. The Assessors were also asked to focus on the diagnosis and treatment of epilepsy. They protested against this too, as being unrepresentative and misleading, but:

"If it is the view of the GMC that the remit of the assessment should be changed in this very fundamental way, then the answer is that which is contained in the answers to questions 1 and 2, namely:

For "Providing or arranging treatment" the overall grading would change from "Cause for Concern" to "Unacceptable".

Under Ruled 13, the answer to question 1 "Has the standard of the practitioner's professional performance been seriously deficient?" would change from "No" to "Yes".

Both these changes would be on the basis of the problems in the management of epilepsy diagnosis and management, which would have been viewed that much more seriously if one excludes all the facts concerning training, lack of resources (e.g. diagnostic and clerical), single handed practice, professional isolation, immense work overload, the need to deliver a general paediatric service as well as manage neurology patients, and a hostile work environment."

57. Question five posed to the Assessors asked them to consider whether the issues of remedies and limitations professional practice would differ as a result of applying a different standard to Dr Holton's work. Their answer was that:

"The position is that Dr Holton has already recognised and accepted the problems relating to his previous approach to epilepsy, and the Performance Assessment demonstrated that he has already taken the necessary remedial action."

It followed that in their view, no remedy or limitation of professional practice was required.

58. Question six asked the Assessors what proportion of patients were put at risk as a result of the management of patients with suspected epilepsy. The Assessors were unable to provide a quantitative response. Their best but crude estimate, based on the cases studied only during the second Phase 1 assessment, was that "a significant small minority of patients with epilepsy or suspected epilepsy were put 'at risk'."
59. I should also set out paragraphs 85 and 86 of the Assessor's Supplemental Report:

"85. Although at the time Dr Holton was practising there was a lack of evidence to support certain aspects of his approach, recently published research now offers scientific support for one aspect of what he did. The Performance Assessors refer to the following paper, which is exhibited as "Exhibit Pressler et al 2005":

"Pressler RM, Robinson RO, Wilson GA, Binnie CD. Treatment of interictal epileptiform discharges can improve behaviour in children with behavioural problems with epilepsy. Journal of Pediatrics 2005; 146:112-117."

86. This research comes from a prestigious unit and was published in what is arguably the most highly regarded paediatric medical journal. The work comprised a double-blind, placebo-controlled, crossover study. The conclusions were (i) that suppressing inerictal discharges can improve behaviour in children with epilepsy and behavioural problems, particularly partial epilepsy and (ii) that focal discharges may be involved in the underlying mechanisms of behavioural problems in epilepsy."

The FTP Panel's decision

60. The FTP Panel decided that the appropriate standard against which to assess Dr Holton's performance was that of a consultant paediatrician with a special interest in Neurology, this being "the job to which you were appointed and which you were carrying out". They added:

"The Panel noted that the Assessors in setting their standard for your post had included the adverse factors which complicated and at times impeded the quality of your performance. However, the Panel considered that these factors were more appropriately taken into consideration after decisions had been taken as to the quality of your performance."

61. The Panel accepted the reasoning and conclusions of the Assessors on 11 categories of performance. As mentioned above, they differed from the Assessors on four categories: Assessment of patients' condition; Providing or arranging treatment; Communication with patients; and Respect for patients. The reasons they gave for doing so were as follows:

"1. The Assessment Panel did not apply the correct standard for the job you were doing, that is, Consultant Paediatrician with a special interest in Neurology

2. The Assessment Panel made a flawed decision in deciding not to take account of the proportion of time spent by you on epilepsy in particular when considering your overall performance.

3. The Assessment Panel mistakenly considered that your current understanding of your areas of deficiency, which reflects hindsight, justified them awarding you a more positive grading.

4. It heard evidence that the comments from parents in the Third Party Interviews were not taken into consideration by the Assessment Panel when they considered their grading."

62. The Panel gave reasons for their conclusion that the right level of grading for Dr Holton's "Assessment of Patients' Condition" was Unacceptable. They referred to the Assessors' conclusions, which they quoted, and added:

"ii. On your admission you spent most of your clinical time (1997-2001) assessing/managing patients with epilepsy. Many were complex and difficult cases. Even if you made errors in only a significant minority of cases the consequences for those children and their families were substantial.

iii. This Panel does not accept the Assessment Panel's argument that, because in clinical areas other than epilepsy your skills were satisfactory, an overall grading of "Acceptable" is justified.

iv. You made mistakes in a central area of your practice on a number of occasions with adverse consequences to some children and their families. The fact that in 2003 you recognised and acknowledged the seriousness of these mistakes, and would now act differently, does not excuse them. The essence of a performance assessment is not what you would do now, but what happened then.

In summary, the Panel endorses the Assessment Panel's conclusions about your failings in the assessment of epilepsy. It considers them to be serious, of sufficient frequency, and of sufficient consequence to cause harm to patients. It rejects the argument that epilepsy formed only a small part of your work. It has no doubts from the Assessors' own individual ratings from their medical record review that this area of your practice was Unacceptable."

63. The Panel summarised the findings of the Assessors in relation to "Providing or arranging treatment", which they regraded from Cause for Concern to Unacceptable, and added:

"In evidence Dr Rosenbloom commented that they had seen no criticism of your management expressed by tertiary referral centres to which you had referred some patients. However, this Panel noted evidence from statements to the Trust by two consultants that they had expressed concern regarding your treatment of epilepsy but you had been unwilling to alter your views which is consistent with the findings of the Department of Health (2003 – Bamford) Report. It also noted that the Community Paediatricians had expressed concern to the Trust about your practice and their concerns were drawn to your attention well before your suspension in May 2001.

The Panel considers that your inappropriate and uncritical treatment of, albeit a small proportion of patients, to be serious, of sufficient frequency and potential harm to regrade your performance in this area to Unacceptable."

64. On relationships with patients generally, the Panel stated:

"When considering this issue of your relations with patients under the headings both "Communication" and "Respect" the Panel concluded that the Assessors had given too much weight to the evidence obtained in the artificial conditions of Phase 2 of the performance assessment. They disregarded the conclusive evidence from numerous sources that the Trust was receiving a steady stream of letters detailing patient complaints about your behaviour. The report prepared for the Trust by the Royal College of Paediatrics and Child Health and the Behaviour Report, also provide evidence of actual incidents involving unsatisfactory behaviour."

65. Under the heading "Communication", the Panel said:

"The Assessment Panel relied on data from health service staff in reaching their conclusion that your communication with patients was acceptable. The Panel considers that the Assessment Panel erred in concluding that the overwhelming body of data obtained in the performance assessment indicated that you were good at communicating with patients and parents.

There was a substantial volume of evidence in the Third Party Interviews which indicated that some parents considered your communication with them had been unsatisfactory. The Assessment Panel excluded this data from their final decisions on your performance against these areas of Good Medical Practice.

Negative features highlighted by parents in the Third Party Interviews included:

You were dismissive, patronising and bullying;

You failed to discuss treatment or provide or discuss management options;

You reacted poorly to being challenged by parents;

You failed to answer parent's questions or provide information

Your failed to check that parents had understood what you told them

These views from parents given as part of the performance assessment are consistent with those expressed by some parents who gave evidence to the Behaviour Report. They were also repeated by the parent complainants who gave evidence directly to this Panel.

This Panel acknowledges that on many occasions your communication with patients and their parents was excellent. In balancing this acknowledged excellence in communication against the negative features highlighted above, this Panel has concluded that the appropriate grading for this category is Cause for Concern."

66. Under "Respect", the Panel said:

"The Panel considered each of these subheads separately and endorses the view of the Assessment Panel that the issues of patient confidentiality, referral and accessibility offered no cause for concern. Nevertheless, the Panel concluded that there was ample evidence from a variety of sources that you did not always treat patients or their relatives with the politeness and respect to which they were entitled. In the Third Party Interviews for example, the Assessors themselves graded 48 out of 99 responses as either giving "Cause for Concern" or "Unacceptable" in terms of "Respect for Patients".

Although the Panel noted that your behaviour met the GMC criteria most of the time it was concerned at the disturbing number of complaints of brusqueness, rudeness or loss of temper. There are sufficient accounts of similar behaviour experienced by members of staff to satisfy the Panel that on the balance of probability your behaviour towards the parents of patients could be erratic and even at times hostile. It was specifically noted that this was particularly the case when your unorthodox views on diagnosis and treatment were challenged.

This conclusion was reinforced by the evidence given by members of staff interviewed for the behavioural report to the effect that the number of complaints about your practice had significantly increased in the years immediately prior to your suspension. It noted that many of these complaints referred to your attitude and behaviour and that you were reported to be reluctant to take these complaints seriously.

In summary, the Panel was satisfied that there was sufficient evidence of you acting in such a way as to undermine patient trust as to give cause for concern."

67. The Panel referred to their legal advice and concluded:

"The Panel notes the Assessment Panel's opinion in their Supplementary Report that the Assessors would have considered your professional performance to have been seriously deficient (with some caveats) if they had applied the same standard that this Panel now has adopted.

The Panel has decided that the standard of your professional performance has been seriously deficient."

68. The Panel noted that Dr Holton was re-training in a completely different specialty, Clinical Neurophysiology, in which he has no clinical responsibility for children, and that it was not his intention to practise in Paediatrics. He was in the third year of a four-year Specialist Registrar training programme. The Regional Postgraduate Dean and his current employers were fully informed about the GMC proceedings when he was appointed. He was working under direct consultant supervision with systematic reviews of his clinical and academic progress. The Panel accepted the legal advice they had been given that having found that Dr Holton's professional performance had been seriously deficient, they were required either to suspend his registration or impose conditions. They decided that conditions were sufficient and necessary for the protection of the public and were proportionate, and imposed the following conditions for a period of 3 years:

"1. You shall confine your practice to working as a Specialist Registrar in the approved higher Medical Training programme in Neurophysiology in the West Midlands Deanery to which you were appointed in 2003;

2. You must obtain satisfactory ongoing assessments and obtain a satisfactory annual performance review (RITA) and you must provide the GMC with copies of the reports on your performance and progress;

3. You shall draw up, in conjunction with the Regional Postgraduate Dean or his nominated deputy, a written Personal Development Plan which addresses the following areas of deficiencies identified by this Panel:

a. Developing a reflective approach to your practice.

b. Skills in communication, and respect for patients.

c. Developing good relationships with colleagues and working in teams;

4. You shall forward a copy of your Personal Development Plan to the GMC within three months of the date in which these conditions become effective;

5. You shall meet with the Regional Postgraduate Dean or his or her nominated deputy, on a six monthly basis to discuss your progress towards achieving the aims set out in your Personal Development Plan;

6. You shall agree to the appointment of a mentor, approved by the Regional Postgraduate Dean or nominated deputy, who shall not be your programme director or a workplace supervisor;

7. You shall allow the GMC to send to the Regional Postgraduate Dean a copy of the report of the assessment of your professional performance and of this determination. You shall permit the Dean to disclose this information to any other person involved in your supervision or retraining;

8. You shall allow information about the standard of your professional performance any remedial action which you have taken in relation to your performance, to be exchanged between the GMC and any person who assists you in complying with these conditions;

9. You shall allow the GMC to obtain information from the Postgraduate Dean or his/her nominee and any other relevant person about the standard of your professional performance and any remedial action you have taken in relation to your performance."

Discussion

I. The finding of seriously deficient professional performance

69. Miss O'Rourke took issue with each of the reasons given by the Panel, and set out under paragraph 38 above, for departing from four of the Assessors' gradings; Mr Englehart submitted that each of them was valid. It is therefore necessary to examine each of them. The issues as to the first three, on analysis, relate to the interpretation of "seriously deficient" "standard of professional performance" in section 36A, and it is therefore convenient to consider them together.

The standard to be applied, and the facts to be taken into account, in assessing whether a practitioner's professional performance has been seriously deficient.

70. It would clearly be unfair and inappropriate to judge the performance of a registrar by reference to that of a consultant: a registrar's work will not be deficient because his standard is not that of a consultant. Conversely, it would be inappropriate, and inconsistent with the object of public protection, for the professional standard of a consultant to be assessed by reference to that of a registrar. However, the difference of view between the Assessors and the Panel was more subtle. It concerned the standard to be applied to someone who indubitably was a consultant but who had not been trained for the composition of work he undertook. The Assessors took the view, broadly, that the appropriate standard was that for which Dr Holton had been trained. The Panel took the view that the appropriate standard was that applicable to the post to which he was appointed and the work he was carrying out.
71. I have no doubt that the Panel were correct. In the present case, there is not the complication that might arise if a practitioner who was appointed to a particular post found himself carrying out work appropriate to a different post. Here, Dr Holton was appointed to a post that was described as that of a Consultant Paediatrician with special interest in Neurology; and during the period considered by the Panel, his professional work was consistent with that description, in view of the considerable proportion of professional time spent on epilepsy cases, estimated by Dr Holton to be 70 per cent. Deficiency is to be judged against the standard of his professional work that is reasonably to be expected of the practitioner. Just as the public is entitled to expect a consultant in any area of medical practice to have a higher standard of work than a practitioner of a lower grade, so the public is entitled to expect that the work of a doctor who occupies a post in any specialty is the standard applicable to that post in that specialty. I add that in my view a practitioner who works outside his specialty is liable to be judged by the standard applicable to the level and the speciality in which he works. As the Board said in Krippendorf v GMC [2001] 1 WLR 1054 at [4]:

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.

The emphasis is in the original.

72. There was no complaint relating to Dr Holton's professional performance in general Paediatrics. The question therefore arises, and was posed by Miss O'Rourke, whether deficiency in part only of a doctor's work can lead to a finding of seriously deficient professional performance. I have no doubt that it can. It is certainly sufficient that that performance is in a significant part of a doctor's work. In the present case, the alleged seriously deficient professional performance was on any basis in a very substantial part of Dr Holton's work.
73. It follows that in my judgment the Panel were right to depart from the standard applied by the Assessors. The Assessors made the separate point that they were unable to identify a standard appropriate to a Consultant Paediatrician with a special interest in Neurology. However, Dr Holton's post having been so described, it seems to me that the Panel had to do their best to identify the standard to be expected of such a practitioner. There is no reason to think that they did not do so.
74. Consistently with this approach, it is irrelevant that the practitioner has not had sufficient training. Professional performance is no less deficient because the practitioner has not been sufficiently trained or educated to be able to render adequate performance. In my judgment, facts and factors personal to the doctor whose performance is being assessed are irrelevant to the question whether it is deficient. The test is objective in that sense. Thus his education, training and personality are irrelevant. Those are matters that may be addressed, if his performance is seriously deficient, by the conditions imposed by the Panel, as it rightly said.
75. On the other hand, factors external to and independent of the doctor, such as the pressure of work, any lack of resources, and professional isolation due to the lack or absence of colleagues are relevant factors. As I remarked during argument, no one can sensibly expect, for example, a doctor working in Accident and Emergency at a time of crisis (for example after a road or rail crash when many serious casualties arrive at the same time) to be able to give the same time to patients as he would if he were not under pressure. His performance should be that which is to be expected of a competent practitioner in the circumstances. Professional isolation due to a doctor's personality or behaviour, on the other hand, is not a factor to be taken into account in assessing the adequacy of professional performance.
76. In Krippendorf the Privy Council emphasised that what is under consideration in proceedings under section 36A is the work of the practitioner, in other words his professional performance. It is for this reason that his performance in tests taken by him at the instance of the Assessors is not the immediate subject of assessment. It can only cast light on the doctor's performance. For example, take the hypothetical case of a doctor who consistently prescribes a particular drug for a particular condition, for which other drugs may be more appropriate. If a subsequent test shows that he is unaware of the other drugs, that casts light on his failure to prescribe them: it shows that his prescription decision was not an exercise of judgment between alternatives, but the result of ignorance. Conversely, a test revealing knowledge of the alternative drugs may indicate (unless the knowledge is recent) that the doctor's prescription is an exercise of clinical judgment.
77. For the same reason, the fact that a doctor accepts that his performance has been seriously deficient and undertakes to remedy it cannot prevent a finding that it has been so. That acceptance, and his intention and ability to remedy his professional performance, are relevant only to the order to be made by the Panel under section 36A, i.e. whether suspension is appropriate or conditions sufficient, and if the latter the content and duration of those conditions.
78. It follows that in my judgment the first three reasons given by the Panel for departing from the Assessors' conclusions set out under paragraph 38 above were well-founded, and justified their doing so. Their fourth reason does not relate to either of the heads of Dr Holton's professional work which the Panel found to be of an unacceptable standard, but concerns those relating to communications with patients, which I consider below.

Retrospection

79. The GMC has proceeded on the basis that professional performance before 1 July 1997, when section 36A and the Performance Rules came into force, cannot be the basis of a finding that the professional performance of a doctor has been seriously deficient. I assume it did so on the assumption that the presumption against retrospectivity is applicable to the interpretation of section 36A. That approach would seem to have been supported by two decisions of the Privy Council, Krippendorf v GMC [2001] 1 WLR 1054 and Sadler v GMC [2003] UKPC 59, [2003] 1 WLR 2259. During the hearing of this appeal I questioned whether that assumption is correct. In my judgment, it is not.
80. On the literal wording of section 36A, after the section came into force a Panel might make a decision that a doctor's professional performance had been seriously deficient on the basis of his misconduct before it came into force. The words "found by the Committee on Professional Performance to have been seriously deficient" are apt to include previous conduct. In my judgment, that is a sensible and the correct interpretation of the statute. Section 36A does not create any criminal offence. It is common ground that it is not penal in character. It is a regulatory measure, primarily aimed at the protection of the public, but also calculated to assist doctors whose deficient professional importance may be remedied by the imposition and their compliance with conditions. As Lord Walker said in Sadler v GMC [2003] UKPC 59:

17. … The purpose of assessment is not to punish a practitioner whose standards of professional performance have been seriously defective, but to improve those standards, if possible, by a process of supervision and retraining, for the protection and benefit of the public. …

…

38. … The purpose of all the provisions is to protect the public from sub-standard medical care, not to punish practitioners for blameworthy acts or omissions.

81. Before section 36A came into force, the only disciplinary measure available in relation to deficient professional performance was for the GMC to seek to establish that it amounted to serious professional misconduct. I was told by Miss O'Rourke that the availability of the less serious findings and measures under section 36A was welcomed by doctors. But where a doctor had demonstrated before 1 July 1997 that his professional performance was seriously deficient, I see no good reason why Parliament should be taken to have intended that he had to repeat his seriously deficient performance, to the detriment of his patients, and at their risk, after that date before the GMC could intervene.
82. This approach is supported by the decision of the Court of Appeal in Antonelli v Secretary of State for Trade and Industry [1998] QB 948. That case concerned the provisions of the Estates Agents Act 1979. The Court held that since the object of the Act was the protection of the public, Parliament could not have intended the power conferred by it to make a disqualification order in respect of estate agency work to be restricted to persons who had committed criminal offences committed after the commencement of the Act. Having reviewed the authorities on statutory retrospection, Beldam LJ, with whom the other members of the Court agreed, said, at 958-9:

… I start with the declared purpose of the Act of 1979 and the policy behind its enactment that it is intended to make provision "with respect to the carrying on of and the persons who carry on" estate agent's activities. The provisions giving the Director (of Fair Trading) power to disqualify are intended for the protection of the public and it would be quixotic to suppose that Parliament intended that the public should be protected from the activities of a practitioner convicted a week after the Act came into force but not from those of the practitioner convicted a week before. Should Parliament be supposed to have regarded the imposition of a disqualification which precluded a person convicted of a serious mortgage fraud only a month or two before the passing of the Act from continuing to act as an estate agent as "unfair?" In my view, Parliament might well have considered it unfair to allow such a person to continue in practice to the possible detriment of the public whilst prohibiting a person convicted of a similar offence a month or two after the Act of 1979 came into force.

83. Of course, there is an obvious difference between the disqualification of an estate agent who has committed a criminal offence and the suspension of or imposition of conditions on the registration of a doctor on the ground of his seriously deficient professional performance. But the consequences for the doctor's patient may be far worse than the consequences for the estate agent's client. On the other hand, the consequences for the doctor whose performance is found to have been seriously deficient do not go as far as permanent disqualification: even indefinite suspension must be reviewed at the doctor's request.
84. In my judgment, neither the decision of the Privy Council in Krippendorf nor its decision in Sadler requires a different conclusion. In Krippendorf, as in the present case, the GMC had assumed that it was "not allowed to look at (Dr Krippendorf's) performance prior to 1 July 1997 because our statutory powers do not permit us to consider performance prior to that date": see at [2001] 1 WLR 1060D-E; and it was not argued that that assumption was incorrect. Moreover, the complaint which had led to the proceedings related to the doctor's performance after 1 July 1997. It is not surprising, therefore, that the Board stated that the function of the Panel was to assess Dr Krippendorf's performance by reference to her work since 1997: see at 1067C-D. At 1057 the Board referred to the Rules and said:

The performance procedures in the present case have been regulated by the General Medical Council (Professional Performance) Rules Order of Council 1997 (SI 1997/1529) ("the Rules") as corrected in November 1997 and March 1998. The Rules, which provide a comprehensive framework for the procedures, came into force on 1 July 1997. The CPP are therefore entitled only to look at matters which occurred after 1 July 1997.

85. However, with the greatest of respect, and as Mr Englehart accepted, the last sentence is a non-sequitur, as the decision in Antonelli demonstrates. A procedure may come into effect on a date which leads to orders being made in relation to events prior to that date. Moreover, since the point was not argued, the Board's judgment is not authority that section 36A is inapplicable to professional performance before it came into force.
86. In Sadler, the Board stated at [19] that events before 1 July 1997 are of background relevance only, but again the point was not argued. Doubtless because there was no relevant issue before the Privy Council, Antonelli was not cited in Sadler, and there is no reference to it in the judgment of their Lordships in Krippendorf. Sadler too, therefore, is not authority that no order could have been made under section 36A as a result of seriously deficient professional performance before it came into force.
87. In my judgment, therefore, the assumption of the GMC and the submission of Miss O'Rourke that the Panel cannot have regard to professional performance before 1 July 1997 are mistaken.
88. The consequences of this conclusion are not straightforward. Since the Assessment and the hearing before the Panel were conducted on the assumption, shared by the GMC and Dr Holton, that pre-1 July 1997 conduct was irrelevant, save (per Sadler) as background, in my judgment I should interfere with the decision of the Panel only if it is shown that the reception of evidence relating to his conduct before that date may have unfairly affected their decision. On analysis of the Panel's reasons, however, pre-1 July 1997 events were at most peripheral to their decision. In my judgment, therefore, ultimately there is nothing in this point.

The evidence of the lay complainants

89. Miss O'Rourke submitted that the Panel had erred in law in accepting and acting on the evidence of the lay complainants. She had not cross-examined them in the Panel hearing. She informed the Panel that she had declined to do so because the medical notes and hospital records relating to the patient to whom their complaint related were not available at the hearing, and she considered that in those circumstances she could not effectively cross-examination. Dr Holton, for his part, generally had no specific recollection of the patients in question.
90. Mr Englehart submitted that the Performance Rules entitle complainants to give evidence to the Panel and to address them: paragraph 10 of Schedule 3. He submitted that it would be inconsistent with this statutory provision for a Panel to refuse to accept the evidence of complainants.
91. In my judgment, Mr Englehart is plainly right. The words "the complainant may give evidence to the Committee" and "may address the Committee" in paragraph 10 confer a right, but not an obligation, on a complainant. The Committee or Panel has no discretion to refuse to permit a complainant to give evidence. What weight, if any, the Panel attaches to his evidence is another question: the Panel may reject his evidence in its entirety if it comes to the conclusion that it is untrue or unreliable; but they must have good grounds for doing so.
92. The appropriate course for those representing Dr Holton was to require the GMC to make available for the hearing any contemporaneous documents on which they wished to rely, so as to enable them to be deployed at the hearing. If the documents in question were unavailable to the GMC, they could have sought the issue of a witness summons under CPR Part 34.4. If the GMC refuses to make documents available, a direction should be sought from the Panel and if necessary an adjournment of the hearing until they are produced. I was told by Mr Englehart that there had been no application on behalf of Dr Holton for medical notes relating to the patients in respect of whom complaints were before the Panel.
93. It seems to me that the Panel were correctly advised and approached the lay claimants' evidence appropriately. They had to assess the lay complainants' evidence and to give it the weight they considered appropriate having regard to the lack of cross-examination and the reasons for it.

The competence of the Panel and their regradings

94. Miss O'Rourke submitted that the lack of specialist knowledge of the Panel meant that they were not entitled to undertake regradings without any expert evidence or specialist adviser advice supporting such regradings.
95. This submission can only apply to the heads regraded by the Panel as Unacceptable. It cannot apply to the Panel's determinations on communications with patients: I see no reason why a Panel requires specialist knowledge in order to assess this aspect of a practitioner's work.
96. Miss O'Rourke accepted, as she must, that the decision made in cases such as the present is that of the Panel, not that of the Assessors. The Panel must take the Assessors' findings into account, and will normally give them great weight, but they are not bound by them. They are certainly not bound by them if they find, correctly as I have held, that the Assessors reached their conclusions on an incorrect basis. In that situation, the Panel has no choice but to reach its own conclusions on the facts as found by them. If the Panel does not have the benefit of relevant expert evidence, they should normally ask their expert adviser to express his views on the facts on the basis they consider to be applicable.
97. In the present case, the Assessors themselves regraded Dr Holton's performance in relation to Providing or arranging treatment on the basis advised by counsel as Unacceptable: see paragraph 55 above. In my judgment, that alone did not justify the Panel's regrading, because the Assessors' regrading did not take into account factors, such as lack of resources, which in my judgment have to be taken into account in deciding whether a practitioner's professional performance has been seriously deficient, unless those factors are attributable to the practitioner's work or personality. It nonetheless provides support for the Panel's findings. Furthermore, I note that the Panel were alive to the possible relationship between pressure of work and lack of resources and the work and personality of Dr Holton: they referred to the written evidence that his own work style contributed to his work load.
98. In the end, I must consider the reasons given by the Panel for their regradings with a view to determining whether they were not supported by the evidence. In my judgment, the reasons given by the Panel in relation to Assessment of Patients' Condition and Providing or arranging treatment justified their findings. In relation to Assessment of Patients' Condition, Miss O'Rourke submitted that the Panel did not take into account the undoubted fact that there is no acid test for epilepsy: as the Royal College's Report put it, "There is no gold standard to apply." A wrong diagnosis is not necessarily evidence of a lack of competence or of care, or, to put it in other words, deficient professional performance (let alone seriously deficient professional performance). However, the fact that Dr Holton acknowledged his errors in assessment of patients and his acceptance of the Assessors' description of his failings indicates that the Panel referred to deficient performance rather than understandable errors. In relation to Providing or arranging treatment, the reasons given by the Panel justified their finding that Dr Holton's errors were indicative of seriously deficient professional performance.
99. It follows that I reject Dr Holton's attack on the findings of the Panel that his professional performance had been seriously deficient.
100. Miss O'Rourke also submitted that the regradings by the Panel under the heads relating to communications with patients should be overturned. In that connection, I received written submissions from her and Mr Englehart referring to the evidence of individual complainants. However, Miss O'Rourke said that if the finding of seriously deficient professional performance was upheld, she would not complain about the only condition imposed by the Panel that specifically addressed communications with patients. In these circumstances, and in view of the already excessive length of this judgment, I do not propose to address each particular submission.
101. The Panel departed from the finding of the Assessors under the head "Communication with patients" on the basis of third party interviews that the Assessors had excluded from their decision. Miss O'Rourke criticised the Panel's reliance on these interviews. Mr Englehart was right to submit that it is important to distinguish between what a parent said about the correctness of diagnosis or treatment and what he or she said about Dr Holton's manner and communications with him or her. Miss O'Rourke's submissions did not do so. The Panel were certainly entitled to accept the evidence of what 2 parents referred to by the Panel under the heading "You were dismissive" etc.: one did not give oral evidence, and was described in Miss O'Rourke's closing submissions to the Panel as "more reasonable and more capable of exercising some judgment"; another was also conceded as falling into a different category from some of the others, by which I understand her to have meant that she was less partisan and unreasonable. Miss O'Rourke submitted that one of the patient's allegations relate to events before 1997, but she did not substantiate this in her submissions, and in any event, given the lack of any cross-examination of any complainants, I cannot see that this resulted in any unfairness. If I take as an example the heading "Failure to provide information", 3 patients were concerned, of whom the evidence of two was written only, and it is not suggested that it did not justify the Panel's finding. In relation to the third, I note that Miss O'Rourke's closing submissions to the Panel related more to the treatment of his son than to Dr Holton's communications with him.
102. On an appeal against the Panel's findings on a matter such as the present, the Court can interfere only if it is shown that there was no or insufficient evidence to justify the tribunal's findings. In relation to the Panel's finding under the head of Communication with patients, that has not been shown.
103. I set out above the Panel's reasons for departing from the Assessor's grading under the heading "Respect for patients, politeness, respect and confidentiality". In my judgment, those reasons justified their decision.
104. It is to be noted that the Panel did not alter the Assessors' grading of Dr Holton's performance under the head "Relationships with colleagues/GPs/Teamwork" as Cause for Concern. Thus there were three heads which were Cause for Concern and two, and probably the most important two, were found to be Unacceptable.
105. The Panel's final conclusions on the question of seriously deficient professional performance were as follows:

"Where does responsibility for the deficiency lie? Although you were not fully trained as a Paediatric Neurologist, you had read widely and taken opportunities to expand your knowledge. The Panel is satisfied that despite your relative isolation there was no good reason why your understanding of what diagnosis and treatment of epilepsy was appropriate should not have been on par with that of consultants in comparably designated roles at that time. The Panel heard convincing evidence about your very heavy workload and some of the resource constraints, such as delays in getting letters typed. It is aware that you campaigned for an expression of consultant staff in Paediatric Neurology for several years and were only successful in 2000. The Panel has noted written evidence you made no attempt to argue that your failings were due to your workload or stress.

The prime responsibility rests with you. Perhaps because you were the lead consultant with responsibility for epilepsy, or because of your academic approach, or because of the intensity with which you approached clinical work, you failed to take adequate note of clinical presentations and clues. You did not show a reflective approach to the diagnosis and treatment of some of your patients with epilepsy. You did not always listen to parents and children or to concerned colleagues. Some parents and professional colleagues considered your approach to be an arrogant one.

As a consequence the service you provided patients was not always reliable. The Panel has heard evidence that professional colleagues attempted to raise concerns about your approach sometime prior to your suspension, but with no constructive response. The ability to reflect and refine diagnosis and treatment approaches in difficult areas of clinical practice, in the context of feedback from patients, parents and colleagues is an essential component of good medical practice. This is at the core of our seriously deficient performance. It is likely that most of the problems in relation to communication and respect stem from an inappropriate response to challenge rather than a lack of professional skills in working with patients. You performed well in the clinical competency tests undertaken by the Assessment Panel."

106. I see no defect in this reasoning.
107. On this basis, the Panel were entitled to come to a general conclusion that Dr Holton's professional performance had been seriously deficient.

Conclusion on the substantive finding of seriously deficient professional performance

108. For the reasons set out above, I conclude that Dr Holton's appeal against the finding of seriously deficient professional performance should be dismissed.

The conditions imposed by the Panel

109. Miss O'Rourke raised an issue of principle and issues going to the content of the conditions imposed by the Panel.

Was the Panel required to impose conditions?

110. First, Miss O'Rourke submitted that the Panel wrongly held that, having decided that Dr Holton's professional performance had been seriously deficient, they had no alternative but to impose conditions. She relied on the wording of paragraph 10(h)(ii) of Schedule 3 to the Performance Rules, and submitted that the alternatives it set out were possibilities and did not occupy the whole field of available decision.
111. In my judgment, that paragraph must be read subject to section 36A(1), which, following a finding of seriously deficient professional performance, by the use of the words "shall direct- …. or …" requires the Panel either to suspend or to impose conditions. The Panel were correct to hold that they had no choice but to impose conditions.

The content of the conditions imposed by the Panel

112. It was common ground, and is in any event clear, that the conditions imposed by a Panel must relate to the specific deficient professional performance found by them; they must be necessary for the protection of the public and/or for remedying the deficiencies found, and they must be proportionate, that is, they should not operate disproportionately in their interference with the practitioner's right to practise.
113. Dr Holton's principal complaint relates to Condition 1, and to other conditions that impliedly relate to it in referring to the Regional Postgraduate Dean. Dr Holton has no intention of practising in Paediatrics. His present position is that of a Registrar in Training in Clinical Neurophysiology. It expires in October 2007; at the date of the Panel's decision, he was in the third year of a four-year course. As the Panel noted, he works under the supervision of a consultant, with systematic reviews of his clinical and academic progress. Miss O'Rourke told me that Dr Holton is on course to obtaining his Certificate of Completion of Specialist Training in that field. He can apply for a position in his new field during the period of 6 months preceding October 2007; and he cannot retain his position as a Registrar for more than 6 months after the award of his CCST. Given that, as Miss O'Rourke pointed out, there had been no complaint concerning Dr Holton's general paediatric work, there was no reason to impose a condition affecting Dr Holton's ability to work in his new field, certainly no reason for a condition having a duration of 3 years, and no good reason to tie him to practise in the area of the West Midlands Deanery.
114. I find these submissions compelling. They must be viewed in the light of the undoubted fact, as found by the Assessors and accepted by the Panel, that in 2003 Dr Holton had "recognised and acknowledged the seriousness" of his mistakes "and would now act differently". Mr Englehart pointed out that the conditions imposed by the Panel may be reviewed by them. However, in relation to the timing of a review, the only certainty is that a review hearing will take place before the expiration of the 3-year period. In any event, the prospect of review cannot justify otherwise exorbitant conditions.
115. I propose, therefore, to allow Dr Holton's appeal against condition 1. It will be replaced by the following:

"1. You shall confine your practice to working as a Specialist Registrar or Consultant in Neurophysiology."

116. Condition 2 will be replaced by the following:

"2. You must obtain satisfactory reviews of your clinical and academic progress in your current Specialist Registrar training programme and you must provide the GMC with copies of the reports on your performance and progress."

117. The remaining conditions will remain, but the reference to the Regional Postgraduate Dean is to be read as referring to the Regional Postgraduate Dean of the region in which Dr Holton is working from time to time.
118. Dr Holton's registration will be subject to the above conditions until 31 March 2008. By virtue of paragraph 12 of Schedule 3 to the Performance Rules, the Panel is required to hold a resumed hearing before that date.
119. Since the parties have not had an opportunity to make submissions on these suggested conditions, they may do so when judgment is handed down. For that purpose, they should exchange short written submissions to enable both counsel to take instructions on the other party's proposals.

Final comments

120. Although I have upheld the Panel's departures from the findings of the Assessors, like the Panel I should like to pay tribute to their thorough and comprehensive work. In an investigation plagued by publicity and surrounded by high emotion, they sought to produce a sympathetic report, relying so far as possible on objective evidence. Their work, and the hearing of Dr Holton's case before the Panel, were complicated, and their findings marred, by the lack of clear guidance as to what facts can, and what facts cannot, be taken into account when determining whether a practitioner's performance has been seriously deficient. Had that guidance been available when the Assessors began their work, I do not think that there would have been the differences between them and the Panel on the important issues as to Dr Holton's diagnoses and his treatment of his patients. I hope that this judgment will provide the necessary guidance for future Assessors and FTP Panels.
121. Finally, so that my judgment is not misunderstood, I should say that nothing in this judgment should be seen as casting doubt on the Assessors', and indeed the Panel's, description of Dr Holton as a committed, hard-working, highly intelligent and qualified professional.