Dzikowski v General Medical Council

On a statutory appeal from a Fitness to Practise Panel, the High Court exercises a secondary judgment. It may intervene where the decision is wrong or unjust because of a serious procedural or other irregularity, but must accord appropriate respect to the Panel’s professional assessment, particularly on sanction and protection of the public.

A Panel may find breach of registration conditions by applying clear prescribing guidance, regardless of the practitioner’s subjective understanding of the condition. Where an unrepresented practitioner elects not to call an expert, after being warned that the written evidence will carry reduced weight, the resulting disadvantage does not ordinarily constitute procedural unfairness. Erasure may be proportionate where repeated non-compliance, lack of insight and an entrenched attitude create a serious risk to patients and undermine public confidence.

Dr Wlodzimierz Dzikowski appealed against a Fitness to Practise Panel’s determination that he had breached conditions imposed on his registration, including requirements to comply with the Orange Book and the British National Formulary, and an interim prohibition on prescribing methadone.

The Panel preferred the GMC’s expert evidence, rejected Dr Dzikowski’s explanations, and directed that his name be erased from the Medical Register. He challenged the findings of breach, the treatment of his uncalled expert’s written evidence, the adequacy of the Panel’s reasons, and the proportionality of erasure. An earlier appeal concerning interim orders was dismissed as superseded by the final determination.

1. Appeal dismissed. The Panel’s direction erasing Dr Dzikowski’s name from the Medical Register was upheld.
2. Under section 40 of the Medical Act 1983, the High Court could dismiss, allow and quash or substitute the direction, or remit the case. The appeal was by way of rehearing, but intervention required the Panel’s decision to be wrong or unjust because of a serious procedural or other irregularity. On sanction, the High Court’s assessment was a distinctly secondary judgment, requiring appropriate respect for the professional Panel’s assessment: Fatnani and Raschid v GMC [2007] EWCA Civ 46, applying the approach described in Ghosh v GMC [2001] 1 WLR 1915.
3. The Panel was entitled to construe condition 4 according to its clear wording. Unlike other conditions, it was not limited to new or returning patients. Dr Dzikowski’s subjective understanding of the condition was irrelevant to whether he had complied with it.
4. The Panel was entitled to find breaches of the Orange Book and BNF requirements concerning dosage, alterations to computer-issued prescriptions, prescribing methadone tablets, prescribing benzodiazepines other than diazepam for withdrawal, and daily collection of methadone ampoules dispensed by a pharmacy. The guidance concerning injectable methadone was specific and qualified the more general guidance.
5. There was no serious procedural irregularity in the treatment of Dr Beckett’s evidence. He had chosen not to call Dr Beckett, had been expressly warned that the absence of cross-examination would reduce the weight of the reports, understood that position, and sought no adjournment.
6. The Panel gave adequate reasons for preferring Dr Seivewright’s evidence. Its reasons addressed the greater number of prescriptions examined, the detailed analysis, the oral evidence and cross-examination, and the limited and unanalytical nature of Dr Beckett’s reports. The standard concerning reasons in English v Emery Reimbold [2002] 1 WLR 2409 was satisfied.
7. The Panel had considered favourable evidence about Dr Dzikowski’s clinical abilities and service to patients. Its conclusions that repeated non-compliance, lack of insight and deep-seated attitudinal problems created a significant risk to vulnerable patients, and that further conditions or suspension would not protect the public or maintain confidence, were open to it. Erasure was proportionate.

• High Court (Administrative Court): appeal against the Fitness to Practise Panel’s final determination of 11 July 2008 dismissed. An earlier appeal against interim orders was also dismissed as superseded by the final determination.
• Fitness to Practise Panel: found repeated breaches of registration conditions and directed erasure from the Medical Register.