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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Monji v The General Pharmaceutical Council [2014] EWHC 3128 (Admin) (03 October 2014) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2014/3128.html Cite as: [2014] EWHC 3128 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
(SITTING AS A DEPUTY HIGH COURT JUDGE)
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SUDHIR MANILAL MONJI |
Appellant |
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- and - |
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THE GENERAL PHARMACEUTICAL COUNCIL |
Respondent |
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(Transcript of the Handed Down Judgment of
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Mr Andrew Faux (instructed by the GPC Solicitor) for the Respondent
Hearing dates: 23 July 2014
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Crown Copyright ©
Judge Andrew Grubb :
Introduction
The Respondent's Case
"1. On 24 September 2010 you removed a quantity of fragrance testers from the pharmacy
2. Your conduct at paragraph 1 was
(a) Inappropriate; and/or
(b) Dishonest, in that you:
(i) Intended to permanently remove the fragrance tests from the pharmacy
(ii) Knew you had no lawful authority to permanently remove the fragrance testers from the pharmacy
By reason of the matters above, your fitness to practise is impaired by reason of misconduct."
The Appellant's Case
The FPC's Determination
"We have considered all of the evidence and the submissions made to us with great care. I have set out details of the evidence that we heard and the submission that were made to us in some considerable detail but, inevitably, I will not have mentioned some matters that Mr Monji might consider important. This is a case in which we have had the advantage of a full transcript as the hearing has gone on. In addition to listening carefully we have read the transcript of the full hearing, and I believe that we have considered everything, whether or not I have referred to it in the summaries that I have given in this determination.
We have also borne in mind the fact that Mr Monji has been representing himself. It seemed to us that he had difficulty, particularly in the cross-examination that he conducted, in focusing on the matters that are relevant to the allegation made against him. His submissions to us were more focused, and it was obvious to us, that a great deal of work had gone into them.
We have also, in our consideration of the facts, borne in mind the undoubted fact that Mr Monji appears before us as a man of good character. Not only is it right that he has no convictions or any disciplinary matters recorded against him, but we have seen evidence in the testimonials that he has put before us that he is an excellent pharmacist and a man of positive good character. We have borne this in mind as an indication, both that it means that he is more likely to be telling the truth as a result, and also that it shows that it would not be likely that he would commit the acts that he is accused of.
We do not believe that there is room here for a misunderstanding as to the allegations that are being made. On the basis of the differing accounts given by the witnesses for the Council and Mr Monji, it seems to us that there is no possibility of honest misunderstandings. The inevitable conclusion is that either the account given by Mr Monji is false and a dishonest attempt to avoid the consequences of what he did in September of 2010, or the Council's witnesses are all not telling us the truth in their account of what happened and are deliberately trying to mislead us to put a false case against Mr Monji.
In a nutshell the effect of Mr Monji's evidence and his submissions to us is this: he said that Mr Henrich's evidence was improbable and flawed and untrue. The investigation against him was inadequate and unfair, and the evidence of the other witnesses from Boots was dishonest and tainted by grudges against him or a desire in others to commit the type of theft alleged against him. He said that, on the contrary, he was a good manager with the highest standards which he would never jeopardise, and he did not do what he was accused of.
We have of course reminded ourselves that our job is to determine the facts on the balance of probability. Inevitably we have borne in mind the effect of a finding adverse to Mr Monji as a professional man but, in the end, our job is to apply the civil standard of proof.
Mr Monji has put a quite immense amount of effort into this case, as we are sure he also did at the hearing before the Employment Tribunal. He has mastered the detail of the documents in a most impressive way but, in the end, we considered that Mr Micklewright's submissions to us about Mr Monji's evidence were well-founded. It was clear to us that he took every opportunity to give answers that he wanted to give at great length but, when he was asked difficult questions, he was evasive and went to considerable lengths to avoid them and answer questions that had not been asked. We did not find Mr Monji a credible witness on the important issues, and we did not believe his protestations that all the Council's witnesses had conspired against him.
It is right to say that we know that Mr Monji lost his case at the Employment Tribunal. We have not seen the decision of the Employment Tribunal, and we know that we have only been shown a small fraction of the material that was before the Employment Tribunal. We have ignored the result at the Employment Tribunal in our consideration of Mr Monji's evidence. Our conclusion about Mr Monji is based entirely on the evidence that we have heard and seen.
We understand that Mr Henrich is an ex-policeman and, in that capacity, he would have experience of investigations and court proceedings. He seemed to us to be a competent and careful Profit Protection Officer. We considered that he gave his evidence careful and that, although it was possible to criticise some aspects of his investigation with the benefit of hindsight, it was fair and even-handed. We saw nothing in the evidence of the DVD and the report commissioned by Mr Monji to cast any doubt at all on what Mr Henrich said he could see from his observation in the car park. On the contrary, we thought that the plan and photographs we were shown, as well as the DVD, were all consistent with what Mr Henrich told us he could see. We accepted his account of what he saw in the car park and what he said happened when he tried to stop Mr Monji from driving away, and we did not believe Mr Monji's account that nothing had happened apart from his taking three empty and collapsed crates together with a wheeled dolly. We believe that Mr Monji was not telling us the truth and we reject his account. We also reject Mr Monji's suggestion that Mr Henrich's evidence was a series of lies, falsely to implicate Mr Monji in wrongdoing. We could see no basis for this suggestion and no support for it.
This conclusion by itself would be enough to dispose of the factual issue that we have to determine but, because of the number of issues that have been raised, the other witnesses that have given evidence before us and the submissions made to us, we would also say this:
1. We found Mrs Taylor to be an impressive witness and we believed that she was telling the truth. In particular we accepted entirely her account that there were two sides to Mr Monji as a manager and that, in the way that she described, she was afraid of him and his temper. In areas where there were inconsistencies between her account to us and other material, we accept that she was not trying to mislead us, but may have had difficulty in remembering. We reject the suggestion that she was deliberately trying to tell a false account in order to satisfy a grudge against Mr Monji. We do not know what the explanation is for the inconsistencies in the accounts as to when exactly she went to the store on Monday morning, but we do not think that it matters. We accept that she found the fragrance testers in the disabled toilet on Monday morning, and that they were then photographed as they were found.
2. We believed the account given to us by Ms Romanczuk. Again, there were some uncertainties about some details, but we accepted that she was telling us the truth as far as she could remember it. In particular we accepted that she had placed only one order on the computer on the Monday for fragrance testers, and that she did not place a further order using Mr Monji's initial 'S' as he suggested to her.
3. In general, we accepted the evidence given to us by Mr Chawla. In particular we accepted that he overheard Mr Maloo speaking in Gujarati on the Sunday, and that he believed that he was speaking to Mr Monji. We accepted that he had gone into the dentistry area with Mr Henrich and had then heard a reference in a further telephone call by Mr Maloo to the toilets. We did not accept that he was part of a conspiracy to give false evidence against Mr Monji. On the contrary, we accepted the force of his evidence, although we consider that it is not clear as to when he first went to the store on Monday morning but, as with Mrs Taylor, we do not think that it matters.
4. We accepted the account given by Mr Maloo that he had spoken to Mr Monji immediately after his departure from the branch on the Friday, and that Mr Monji said what had happened and asked for help in returning the testers to the store. We rejected Mr Monji's story that he had returned the Sim card for the 645 mobile phone number two days before, and we accepted that calls to that number on Mr Maloo's records on the Friday, the Saturday and the Sunday were to Mr Monji. In particular, the call to the 645 number on Sunday morning was at exactly the time that such a call would have been expected when Mr Maloo would report to Mr Monji after opening the shop.
That is all we need to say about the evidence of Mr Maloo. We consider that it may have been the case that he did not immediately come to the conclusion that it was inconceivable that he would help Mr Monji as we believe he was asked to do on the Friday. It may be that his course was not clear to him until the Sunday, but we do not have to make a finding on this aspect of the case, and we do not do so.
5. We did not accept Mrs Parshotam's account that the nine calls she received from Mr Maloo on the Sunday were all about getting accommodation for a friend from India when her account was that she had told Mr Maloo that no answer could be given until her husband was back home. We did not believe that her account on this was credible, and we did not believe it. But we do not know whether it was she who returned the testers to the shop on the Sunday. This is not a finding that we have to make, and we make no findings. We are quite satisfied that the testers were returned on the Sunday at the instigation of Mr Monji, but who it was who took them there we do not know."
"We find that Mr Monji did take the two crates of fragrance testers from the branch on Friday 24 September in a dishonest attempt to steal them. What he was doing was clearly dishonest and it is clear that he knew that it was dishonest because of the way he reacted when Mr Henrich asked him to stop. We find that he realised that he had been under observation from Mr Henrich and drove away past him aggressively to escape being caught red-handed with the testers in his car, and we find he then arranged for the return to the branch of the testers on the Sunday.
It follows that we also find that Mr Monji has not told us the truth in this hearing, but has lied to us and has falsely tried to discredit the Council's witness in order to escape the consequences of what he did."
"While we do not doubt that he is an excellent pharmacist with a long and distinguished record in acting as a pharmacist, and there is no risk to the public from his practise as a pharmacist, we nevertheless have no doubt that Mr Monji's fitness to practise is currently impaired, and public confidence in the profession, and the need to uphold professional standards would be undermined if we were not to make such a finding."
"We believe that Mr Monji's conduct is fundamentally incompatible with continued registration, and our determination is that only removal from the register can meet the seriousness of Mr Monji's misconduct in order to maintain standards in the profession and confidence in the profession."
The Grounds of Appeal
i) No reasonable Committee/Tribunal would have reached the determination this Committee did on the basis of the evidence seen and heard (Ground 1);
ii) The Committee made material findings of fact that were not supported by the evidence before it (Ground 2);
iii) The Committee failed to give reasons for not taking into account the evidence that supported Mr Monji's case (Ground 3);
iv) The Committee acted in an unjust manner by treating Mr Monji in an irregular and unfair fashion (Ground 4);
v) The Committee failed to consider article 8 of the ECHR when making their determination, sanction and interim order (Ground 5).
The Legal Framework of this Appeal
"(1) The following decisions are appealable fitness to practise decisions for the purposes of this Part –
(a) a decision of the Fitness to Practise Committee under article 54 to give a direction to remove the entry of a person from one or more parts of the Register:
….
(2) A person in respect of whom an appealable fitness to practise decision has been made may appeal against that decision to the relevant court…."
"(a) dismiss the appeal;
(b) allow the appeal and quash the direction in respect of which the appeal is made;
(c) substitute for the direction in respect of which the appeal is made any other direction that the Fitness to Practise Committee could have given; or
(d) remit or refer the case to the Registrar or the Fitness to Practise Committee for disposal of the matter in accordance with the relevant court's directions,
and may make such order as to costs…as the relevant court thinks fit."
"The appeal court will allow an appeal where the decision of the lower court was –
(a) wrong; or
(b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court"
"i) I can only overturn the decision of the FTPP if I am satisfied that it was either wrong or unjust because of a serious procedural or other irregularity in its proceedings (CPR 52.11(3)).
ii) In determining whether the decision was wrong I must pay close regard to the special expertise of the FTPP to make the required judgment (Raschid paras 16, 19).
iii) Equally, I must have in mind that the exercise is centrally concerned with the reputation and standards of the profession, and the protection of the public, rather than the punishment of the doctor (paras 16, 18).
iv) The High Court will correct material errors of fact and of law and it will exercise a judgment, though distinctly and firmly a secondary judgment, as to the application of the principles to the facts of the case (para 20).
v) Where the appeal is against a sanction (as here) my decision must not constitute an exercise in re-sentencing or the substitution of one view of the merits for another (paras 21, 22)."
"…it is plain from the authorities that the Court must have in mind and give such weight as is appropriate in the circumstances to the following factors:
i) The body from whom the appeal lies is a specialist tribunal whose understanding of what the medical profession expects of its members in matters of medical practice deserve respect;
ii) The tribunal had the benefit, which the Court normally does not, of hearing and seeing the witnesses on both sides;
iii) The questions of primary and secondary fact and the over-all value judgement to be made by tribunal, especially the last, are akin to jury questions to which there may reasonably be different answers." (emphasis in original)
""[T]he obvious fact [is] that the appeals are conducted on the basis of the Transcript of the hearing and that, unless exceptionally, witnesses are not recalled. In this respect, these appeals are similar to many other appeals in both civil and criminal cases from a judge, jury or other body who has seen and heard the witnesses. In all such cases the appeal court readily acknowledges that the first instance body enjoys an advantage which the appeal court does not have, precisely because that body is in a better position to judge the credibility and reliability or the evidence given by the witnesses. In some appeals that advantage may not be significant since the witnesses' credibility and reliability are not in issue. But in many cases the advantage is very significant and the appeal court recognises that it should accordingly be slow to interfere with the decisions on matters of fact taken by the first instance body. This reluctance to interfere is not due to any lack of jurisdiction to do so. Rather, in exercising its full jurisdiction, the appeal court acknowledges that, if the first instance body has observed the witnesses and weighed their evidence, its decision on such matters is more likely to be correct than any decision of a court which cannot deploy those factors when assessing the position. In considering appeals on matters of fact from the various professional conduct committees, the Board must inevitably follow the same general approach. Which means that, where acute issues arise as to the credibility or reliability of the evidence given before such a committee, the Board, duly exercising its appellate function, will tend to be unable properly to differ from the decisions as to fact reached by the committee except in the kinds of situation described by Lord Thankerton in the well known passage in Watt or Thomas v Thomas [1947] AC 484, 484-488."
"I do not find it necessary to review the many decisions of this House, for it seems to me that the principle embodied therein is a simple one, and may be stated thus: I. Where a question of fact has been tried by a judge without a jury, and there is no question of misdirection of himself by the judge, an appellate court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge's conclusion; II. The appellate court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence; III. The appellate court, either because the reasons given by the trial judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court. It is obvious that the value and importance of having seen and heard the witnesses will vary according to the class of case, and, it may be, the individual case in question."
"It is plain that where the conclusion of the FTP is largely based on the assessment of witnesses who have been 'seen and heard', this court will be very slow to interfere with that conclusion. Nonetheless, the court has a duty to consider all the material put before it on an appeal in order to discharge its own responsibility, appropriate deference being shown to conclusions of fact reached on the basis of the advantage of having seen and heard the witnesses. Where this court does not feel disadvantaged by not having heard the witnesses, and the issues can be addressed with little emphasis on the direct assessment of the evidence by the Panel, it is in a position to take a different view in an appropriate case."
"the purpose of FTP proceedings is not to punish the practitioner for past misdoings but to protect the public against the acts and omissions of those who are not fit to practise. The FPP thus looks forward not back. However, in order to form a view as to the fitness of a person to practise today, it is evident that it will have to take account of the way in which the person concerned has acted or failed to act in the past."
"Thus, the exercise is proleptic but the best prophet of the future is the past. (But we should also surely give ourselves the warning that appears on every financial product for sale that past performance is no guarantee of future returns.) By the same token, as Sir Thomas Bingham MR explained in Bolton v Law Society [1994] 1 WLR 512, there should be a full understanding by me of the reason why the FTPP makes an order which might otherwise seem harsh. The sanction may have consequences for the individual and his family which are deeply unfortunate and unintended. But that does not make the sanction the wrong order if it is otherwise right: "The reputation of the professions is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is part of the price." The reason that the reputation of the profession is so important is not a reflection of a collective amour propre. It is an aspect of the need to protect the public. The public must be able to approach doctors, lawyers and other professionals with complete faith that they are both honest and competent. Without that faith the problems that would arise are too obvious to state."
The Challenge to the FPC's Factual Findings
The Credibility Issue
The Assessment of the Evidence
"We believed the account given to us by Ms Romanczuk. Again, there were some uncertainties about some details, but we accepted that she was telling us the truth as far as she could remember it. In particular we accepted that she had placed only one order on the computer on the Monday for fragrance testers, and that she did not place a further order using Mr Monji's initial 'S' as he suggested to her."
"We believe that it is fair to say that the cross-examination of Mrs Taylor was wide ranging and in some respects it was unfocused. In the course of it Mr Monji expressly conceded that he had placed an order on 22 September for some fragrance testers, although at that stage it was not clear how many he was accepting that he ordered."
"He was then shown the CCTV footage of the employee Rosa Sueca in the store room on the Friday evening. It was Mr Monji's case that she was working on the delivery of testers after Mr Monji was supposed to have taken them. Mr Henrich said that he considered that she was throwing away rubbish while working on a delivery of other items. Mr Henrich was then referred by Mr Monji to the notes of the interview with Kageen Kanthasamy at page 77 of the Respondent's bundle. The interviewer has noted Mr Kanthasamy saying this in answer to a question as to whether he was aware of a large delivery of fragrance testers: 'Yes, I took them to Ewa/Rosa. One was going on a break; also I saw testers in night delivery after 8 pm'. Mr Henrich said that Mr Kanthasamy was talking about a very small number (two or three) of testers mixed in with healthcare products in a different deliver. It was put to him at 7.15 the testers were not missing from the store. He said 'No, they were missing'."
"She said that she spent a lot of time looking at CCTV and trying to get the system to work. She said that they had difficulty in making it work. She said that the back door camera was blank. She recalled that two cameras were coming up blank."
"We consider it may have been the case that he did not immediately come to the conclusion that it was inconceivable that he would help Mr Monji as we believe he was asked to do on the Friday. It may be that his course was not clear to him until on the Sunday, but we do not have to make a finding on this aspect of the case, and we do not do so."
"We did not accept Mrs Parshotam's account that the nine calls she received from Mr Maloo on the Sunday were all about getting accommodation for a friend from India when her account was that she had told Mr Maloo that no answer could be given until her husband was back home. We did not believe that her account on this was credible, and we did not believe it."
"... we do not know whether it was she who returned the testers to the shop on the Sunday. This is not a finding that we have to make, and we make no finding. We are quite satisfied that the testers were returned on the Sunday at the instigation of Mr Monji, but who it was who took them there we do not know."
Procedural Impropriety
"We have of course not seen the DVD that I have referred to, and we do not know what it will or will not show but, on the basis of what we have seen in the bundles that have been supplied to us, and on the basis of submissions made to us, we do not consider that it is necessary or appropriate for us to go to see these premises. In these circumstances, we accept the submission that it would be unusual [f]or us to have a view of the premises. We accept that it would take a little time for it to be arranged, and it is hard to see how a view, if it was undertaken, could take less than half a day to be completed, and it might take a little bit more. But, if it was necessary fairly to dispose of the allegation before us, the allegation against Mr Monji, we would unhesitatingly go on a view, but it seems to us that it is not necessary.
On the basis, as I have said, of what we have seen and the submissions made to us, we believe that we will be able to determine the issues that arise without the need for a view and, accordingly, the application made by Mrs Golt that we should go for a view is refused."
Conclusion on the Challenge to the FPC's Factual Findings
The FPC's Decision on Sanction
"...we also found that Mr Monji has not told us the truth in this hearing, but has lied to us and falsely tried to discredit the Council's witnesses in order to escape the consequences of what he did. He has mounted a sustained campaign since he was seen to take these fragrance testers to somehow prove that he did not do what he was seen to do. In our judgment he has been trying to defend the indefensible so as not to have to accept what in fact he did.
We have been referred by Mr Micklewright to the case of Hassan v General Council for Optometrists and to the Indicative Sanctions Guidance. It is well known that, in that guidance, the only section where dishonesty appears is in cases where removal from the register may be appropriate. We have been reminded by Mr Micklewright that this fact does not mean that there is a presumption in every case of dishonesty that there should be a removal from the register. We are clear that dishonesty is a factor to be taken into account, but gives rise to no presumption as to what the appropriate sanction should be.
In considering the Indicative Sanctions Guidance, we have had regard to the aggravating factors and to the mitigating factors that can be found in this case. The aggravating factors are as follows:
(a) Dishonesty;
(b) The abuse of trust here as this was misconduct by a senior employee;
(c) Mr Monji's actions were premeditated;
(d) There has been a complete lack of insight into the importance of what Mr Monji did. He is prepared to accept before us that theft is serious misconduct, but he will not accept before us what in fact he did;
(e) There was an attempt at concealment of his wrong doing, both by giving false evidence and attempting to discredit the Council's witnesses at the hearing, and also in an attempt to involve Mr Maloo in getting the testers back into the shop, and he in fact did involve some unidentified woman, as we have found, who actually did return the testers to the shop;
(f) This was misconduct by a man who was in charge of the pharmacy premises; and
(g) Mr Monji's conduct prior to, and in the course of, the hearing was designed in our judgement to complicate the proceedings and conceal what he had done.
Against these aggravating features there are also mitigating factors that we have take into account:
(a) Mr Monji has no previous disciplinary history;
(b) We accept that this was a single incident in a previously unblemished career;
(c) There was no actual or potential harm to patients or to the public as a result of what he did;
(d) There was in the end no loss to his employers;
(e) We repeat that we accept that Mr Monji is an excellent and caring pharmacist.
We have reminded ourselves, in approaching the issue of sanction, that our role is not to punish Mr Monji, for whom the outcome of this proceeding, whatever the sanction, will be a personal disaster reaching his family as well as him, but to protect the public, maintain public confidence in the profession, and maintain proper standards in the profession. We also approach our task by reminding ourselves that we should impose the lowest sanction that is appropriate in the circumstances, and also that any sanction that we impose must be proportionate to the misconduct and to what we know about Mr Monji, and it must be fair to him.
We have been told, and we bear in mind, that Mr Monji has no other findings again[st] him of a disciplinary nature, and that he is a man of previous good character, both in the sense that he has no findings of disciplinary or a criminal nature against him, but also that the testimonials provided to us show a positive good character, both as a man and as a pharmacist. The issue in this case is not one of public safety, but it is the maintenance of public confidence in the profession and the maintenance of standards within the profession.
Mr Micklewright has submitted to us that, because of the aggravating factors here, and the seriousness of the misconduct, only a removal from the register can meet the facts of the case as an appropriate sanction. Mr Monji, in an emotional and eloquent submission to us, submitted that his removal from the register would be too severe on him and his family in all the circumstances. He said that he provides support for his young sons, as well as his elderly and disabled mother, and that if he was removed from the register he would not be able to get a job approaching his current level of employment, and he reminded us that he is nearly 53 and is in poor health. He also said that his removal from the register would be contrary to the public interest, because he is an excellent pharmacist who provides a good service to his patients. He urged us to impose a suspension rather than order his removal from the register. There was gross and serious dishonesty here in a blatant attempt to steal a substantial quantity of valuable products from his employer. Mr Monji shows no insight into the seriousness of his behaviour or remorse for it in that he has continued to deny it and has told us a false story in an attempt to escape the consequences of what he has done. Since we announced our findings on fact, he has repeated to us that he did not do it and that our findings are against the evidence.
We have to decide whether this was conduct that is incompatible with continued registration as a pharmacist, or whether it falls short of that. In the end it is our clear judgment that this is a case where conditions or a suspension cannot meet the gravity of the case. We believe that Mr Monji's conduct is fundamentally incompatible with continued registration, and our determination is that only removal from the register can meet the seriousness of Mr Monji's misconduct in order to maintain standards in the profession and confidence in the profession.
Accordingly our order on sanction is that Mr Monji's name shall be removed from the register."
"In the ordinary case such as this, the attitude of the practitioner to the events which give rise to the specific allegations against him is, in principle, something which can be taken into account either in his favour or against him by the panel, both at the stage when it considers whether his fitness to practise is impaired, and at the stage of determining what sanctions should be imposed upon him."
"Ms Amao was perfectly entitled to say that she did not accept the findings of the panel: She had a right of appeal which she was entitled to exercise".
"The sanction may have consequences for the individual and his family which are deeply unfortunate and unintended. But that does not make the sanction the wrong order if it is otherwise right: "The reputation of the professions is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is part of the price." The reason that the reputation of the profession is so important is not a reflection of a collective amour propre. It is an aspect of the need to protect the public. The public must be able to approach doctors, lawyers and other professionals with complete faith that they are both honest and competent. Without that faith the problems that would arise are too obvious to state."
Decision