Qureshi v. General Medical Council (GMC) [2003] UKHL 56 (14 July 2003)
ADVANCE COPY

	Privy Council Appeal No. 54 of 2002

Dr. Saghir A. Qureshi	Appellant
	v.
The General Medical Council	Respondent

	FROM

THE PROFESSIONAL CONDUCT COMMITTEE
OF THE GENERAL MEDICAL COUNCIL
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	REASONS FOR REPORT OF THE LORDS OF THE
	JUDICIAL COMMITTEE OF THE PRIVY COUNCIL OF THE
8th May 2003, Delivered the 14th July 2003
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	Present at the hearing:-
			Lord Hoffmann
Lord Scott of Foscote
The Rt. Hon. Justice Tipping
		  	[Delivered by Lord Hoffmann]
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1. 	After a hearing on 8 May 2003 their Lordships announced that they would humbly advise Her Majesty that the appeal should be dismissed with costs.  Their reasons now follow.

2. 	Dr Qureshi qualified in Pakistan in 1965 and has since practised various branches of medicine, including anaesthesia, ophthalmology, obstetrics, gynaecology and psychiatry, in Pakistan, the Netherlands, Canada and the United Kingdom.  Since 1988 he has practised almost entirely in the United Kingdom, where he has held a large number of short-term locum appointments at hospitals, prisons and other institutions.  He is now 63.

3. 	As a result of a complaint by colleagues arising out of his work as a locum Staff Grade Doctor in Anaesthetics at the Doncaster Royal Infirmary, the Committee on Professional Performance (“CPP”) directed an assessment of his standard of professional performance in accordance with the General Medical Council (Professional Performance) Rules 1997 (SI 1997/1529) (“the Rules”). The relevant provisions of the Medical (Professional Performance) Act 1995 (pursuant to which the Rules were made) and the Rules themselves may be found in the opinion of the Board in Krippendorf v General Medical Council [2001] 1 WLR 1054 and their Lordships need not cite them again.

4. 	Dr Qureshi was at first reluctant to undergo assessment; he saw no point in an assessment of his past performance in anaesthetics because he was willing to give it up and specialise in ophthalmology, as to which no criticisms of his professional competence had been made. The Council’s first response was to propose that he be assessed in both anaesthetics and opthalmology. But they were later advised that the decision in Krippendorf’s case required the assessment to be confined to anaesthetics.   

5. 	Their Lordships consider that this may have been too strict a view of the decision.   Section 36A of the Medical Act 1983, as inserted by the 1995 Act, gives the CPP power to suspend or impose conditions upon the registration of a practitioner where his standard of professional performance “is found … to have been seriously deficient”.  That means that the foundation for the exercise of the committee’s power is deficient performance in the past and not merely a lack of professional competence which may affect performance in the future.  The purpose of the assessment is to provide the committee with the material upon which it can form the view that actual past performance has been deficient.  Sir Christopher Slade, giving the advice of the Board in Krippendorf’s case, said (at p 1063) that it was the duty of the CPP and the assessment panel to “have regard to the track record of the practitioner in the work which he has actually been doing”. 

6. 	In the present case, ophthalmology was work which Dr Qureshi had actually been doing and there seems to their Lordships no reason in principle why he should not have been assessed in that field if the CPP had thought it would be helpful for this to be done. The Rules contain a screening process which provides by rule 5(1)(c) that before a practitioner can be required to undergo assessment, there must have been a written complaint which “suggests to the medical screener that … the standard of the practitioner’s performance may have been seriously deficient”.  In the present case, the complaint related only to performance in anaesthetics.  But, as their Lordships will in due course have occasion to observe, some skills are essential to the practice of virtually any branch of medicine and evidence of deficiencies in these respects in the practice of one form of medicine may suggest that there have been similar deficiencies in the practice of other forms as well. Thus the nature of the complaint and the other materials considered by the screener may suggest to him that the practitioner’s actual past performance in another branch of medicine may also have been seriously deficient. If so, their Lordships do not think that Krippendorf’s case prevents an assessment of performance in that other branch. Such an assessment may be particularly useful to the CPP in a case such as the present in which the practitioner declares an intention to specialise in that other branch.

7. 	In due course the assessment was carried out, the lead assessor being Dr Rollin, a consultant anaesthetist.  The other two medical assessors were also anaesthetists and there was a lay member.  Phase 1 was an inquiry (“peer review”) into actual cases in which the doctor had been involved at Doncaster Royal Infirmary and the George Eliot Hospital Nuneaton.  The panel concluded that his performance as an anaesthetist had been “unacceptable” and “seriously deficient”.  Matters such as his respect for patients, communication skills, assessment of patients’ condition and consciousness of the limits of his competence were noted as giving “cause for concern”.  Phase 2 was a general examination of the doctor’s theoretical knowledge and practical skills.  The panel described the results as “very poor indeed” and was disturbed by Dr Qureshi’s lack of insight into his own lack of competence. They considered that the standard of his practice was likely to be improved by remedial action.  Rule 13(2)(c) requires them to answer the question whether “the practitioner should limit his professional practice, or cease professional practice?”.  The answer they gave was:
“The panel feels that many of Dr Qureshi’s current problems are the result of his medical itinerancy. He should therefore limit his practice to work in a long term post, at SHO level, under consultant supervision. It would be helpful for him to restrict himself to a single speciality.”

8. 	The assessment panel, after considering Dr Qureshi’s comments on their report, referred it to the CPP for a decision, in accordance with section 36A of the 1983 Act, on whether his registration should be conditional on his compliance with certain requirements or should be suspended.  On 27 May 2002 Dr Qureshi’s solicitors wrote to the General Medical Council saying that after giving careful thought to the panel’s report, he had decided to accept that “his performance in anaesthetics has been seriously deficient”.   But he said that the panel’s recommendation under Rule 13(2)(c) would in practice put an end to his medical career.  At his age (then 62) it would be impossible to obtain any long term post at SHO level. He offered, as he had done before, to cease the practice of anaesthetics and to concentrate on opthalmology.

9. 	In making its determination, the CPP referred to the various deficiencies found by the assessment panel and commented that “many of your deficiencies are in areas that are fundamental to the practice of medicine”.  It imposed conditions on his registration for two years.  It directed that he should follow the advice of a Regional Postgraduate Dean as to the action he should take to remedy the deficiencies described in the determination and the panel report “with particular emphasis on communication skills and appropriate continuing professional development”.  The conditions on practice were that he should confine any anaesthetic practice to SHO training posts in NHS hospitals under close supervision by a consultant and that he should confine all other medical practice to NHS hospital posts at SHO or staff grade level, where his work would be closely supervised by a consultant.  He was also not to undertake locum posts of less than one month’s duration.

10. 	Dr Qureshi appeals against the condition restricting his ability to practise medicine in fields outside anaesthetics, which is the only branch of medicine in which his performance has been found to have been seriously deficient.  The grounds of appeal are essentially four in number.

11. 	First, it is submitted that the CPP has no power under the statute to impose conditions which interfere with the practice of Dr Qureshi in any field other than that in which he has been found deficient.  Their Lordships can find no such limit in the language of section 36A and the submission is inconsistent with the CPP having power to suspend the registration of a registered person, thereby preventing him during suspension from lawfully practising any form of medicine.

12. 	Secondly, it is said that there was no evidence to justify the imposition of conditions relating to practice outside the field of anaesthetics.  But their Lordships consider that a number of the deficiencies disclosed by the assessment were relevant to practice in any form of medicine.  They were, as the CPP said, “in areas that are fundamental to the practice of medicine”.  The CPP was entitled to take the view that the protection of the public required the conditions to be applied across the board.

13. 	Thirdly, the conditions are said to be excessive and disproportionate because Dr Qureshi’s age and particular family circumstances mean that he will find it extremely difficult to comply.  His family live in Canada and his need to make regular visits means that he is in practice unable to avoid having to take short locum appointments in the United Kingdom. Their Lordships have already noted his submission that his age makes it difficult to obtain long-term training appointments; Dr Qureshi has confirmed this by affidavit evidence of his attempts to find such posts.

14. 	The CPP were fully aware of the potential effect of the conditions on Dr Qureshi; the argument was fully developed by counsel on his behalf.  The CPP said that it had taken the need for proportionality into account but had to balance the protection of the public against the consequences for him.  Their Lordships consider that this too was a matter in which the CPP was acting within its powers.

15. 	Finally, counsel on behalf of Dr Qureshi submits that the proceedings were unfair because Dr Qureshi was not given adequate notice of the possibility that conditions affecting any form of medical practice might be imposed.  Their Lordships consider that this fails on the facts.  The recommendation of the panel, already quoted, was clear.  So when the matter came before the CPP, the main issue was whether it would be sufficient protection for the public if Dr Qureshi gave up anaesthetics but remained free to practice in any other field of medicine, or whether his practice in any speciality be confined, as the panel had recommended, to long-term posts at SHO level.

16. 	Counsel for the GMC put the argument to the CPP for a wider restriction:
“Although the assessment of a practitioner’s performance is and must be limited to the speciality of the practitioner … in reality the assessment of past performance brings out deficiencies in anaesthetic practice that clearly cross boundaries of all medical practice … the Act and the rules must have envisaged some greater degree of remedial action than merely directing the practitioner not to operate in a particular field that he or she operated in.  The reason I submit that is because otherwise there would be no need for the power of suspension …”

17. 	Counsel for Dr Qureshi said that the main difference between the parties was whether the condition requiring practice to be at SHO level in a group training post should be confined to anaesthetic practice or also apply to other posts. Dr Qureshi therefore had full opportunity to make submissions as to why the CPP should not make the order which they made. Their Lordships therefore think that the proceedings were fairly conducted.