Razak v General Medical Council [2004] EWHC 205 (Admin)

Case No CO/4075/2003

[2004] EWHC 205 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Friday, 23rd January 2004

Strand

London WC2

B E F O R E:

MR JUSTICE STANLEY BURNTON

Between

DR ALI ABDUL RAZAKClaimant

-v-

Between

GENERAL MEDICAL COUNCILDefendant

Computer-Aided Transcript of the Stenograph Notes of

Smith Bernal Wordwave Limited

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MR DUNNING (instructed by LOFTHOUSE & CO, CASTLEFORD, WF10 IAG) appeared for CLAIMANT

MISS BAXTER (instructed by THE GENERAL MEDICAL COUNCIL, MANCHESTER M2 2 AW) appeared for DEFENDANT

J U D G M E N

[1]MR JUSTICE STANLEY BURNTON: This is an appeal by Dr Ali Abdul Razak from a direction of the Professional Conduct Committee of the General Medical Council given on 30th July 2003 that his name be erased from the Medical Registrar. That direction was made following a finding by the Professional Conduct Committee that Dr Razak was guilty of serious professional misconduct, in respects specified by it in relation to the charges that had been placed before it. The hearing took place between the 28th and 30th July 2003 following which the decision was announced.

[2]The charges against Dr Razak were that being registered under the Medical Act:

"1. At all material times [he was] a UK registered medical practitioner employed by the Hull and East Riding Community NHS Trust as a Hospital Practitioner in Psychiatry. 2.a On a number of occasions [he had] treated [a lady referred to as Miss A] for her psychiatric condition at the Accident and Emergency Department at Goole Hospital and at Bartholomew House, in [his] role as 'on call' psychiatrist. b. At all material times [Dr Razak had known] that Miss A was a psychiatric patient receiving ongoing psychiatric treatment from Dr Brown..."

The matters referred to in paragraphs 1, 2a and b of the charges were unsurprisingly not contentious. The substance of the allegations against Dr Razak was contained in paragraph 3. Paragraph 3 was divided into a number of subparagraphs. The paragraph and the sub subparagraphs were as follows:

"Between April and September 2001 you [Dr Razak] had an improper emotional relationship with Miss A in that a. You visited Miss A at her home address when it was not necessary to do so for professional purposes, b. At Miss A's home address you asked personal questions about her domestic circumstances and made improper remarks, in particular i. you asked questions about Miss A's partner; ii. you said that you were able to have two wives and that Miss A could be your wife, c These questions and remarks at 3b i. had no professional purpose, ii. were inappropriate, iii. were intrusiveness. d. On one occasion at Miss A's home you sat next to her on the sofa and touched her hand without invitation, e. On another occasion at Miss A's home you had sexual intercourse with her, f. You telephoned Miss A on occasions when it was not necessary to do so for a professional purpose, g. In the course of a number of those telephone conversations you would i. greet Miss A saying, "

Hello, Mrs Razak", ii. divulge personal information about yourself and your family, iii. ask personal questions about Miss A and her partner, h. On one occasion you arranged to see Miss A in the evening... During the course of the evening you i. said Miss A could be your wife, ii. said that you wanted to marry Miss A for a year, iii. asked her to repeat words in a foreign language, iv. gave her £10.00 which you said was for her to be your wife. i. on another occasion you collected Miss A from the Peacock Public House and drove to the Drax Power Station. ii. while there you indecently assaulted her, j. You said to Miss A that you would give her a child, k. i. in or about June 2001 you invited Miss A to go with you to Scarborough for the weekend, ii. you took her to the Stewart Hotel in Scarborough, iii. you had sexual intercourse with Miss A at the Stewart Hotel. l. You told Miss A to stop taking the medication prescribed to her by her psychiatric, Dr Brown, m. You visited Miss A at her home address, late one evening, and gave her unprescribed medication which caused her to sleep, N. You invited Miss A to move to Hull, to live in a flat that you would assist her to obtain, in order that you could spend three or four nights a week with her." Those are the allegations contained in paragraph 3 of the charges. There was a separate substantive charge in paragraph 4 that Dr Razak had failed to keep contemporaneous patient records to document his interventions with Miss A after April 2001.

[3]As appears from what I have already said the period covered by paragraph 4 of the charges included the events referred to in paragraph 3.

[4]Paragraph 5 charged that Dr Razak's conduct was:

"a. improper. b. unprofessional. c. potentially detrimental to the care of Miss A. d. not in the best interests of Miss A. e. likely to bring the medical profession into disrepute..."

[5]Following the hearing the following charges under paragraphs 3 and 4 were found proved: 2a, 2b, 3a, 3d, 3f, 3g i and ii, h iii and iv, Ii and ii, ki and ii and iii, m and n. The charge in paragraph 4 was found proved, having been conceded by Dr Razak.

[6]On the basis of those findings as to Dr Razak's conduct the Committee found that the charge set out in paragraph 5 had been proved and the sentence to which I have already referred was passed.

[7]It has not been suggested by Mr Dunning, on behalf of Dr Razak, that if the charges contained in paragraphs 3, 4 and 5 were found proved by the Committee the sentence that was passed was excessive. Nor has it been suggested that the specific charges contained in paragraph 3, which were found to be proved, did not justify the conclusions made by the Committee in finding that the charge in paragraph 5 was proved; that is to say, for him to have indecently assaulted and had sexual intercourse with Miss A, who was a psychiatric patient, and to have committed the other matters referred to in paragraph 3, which were approved, his conduct, was improper, unprofessional and potentially detriment to the care of Miss A, not in the best interest and likely to bring the medical professional into disrepute.

[8]The challenge in this statutory appeal is as to the specific findings made by the Committee. Again, it goes without saying that, if those findings were shown not to have been findings properly available to the Committee, they would have to be set aside and with it the direction that Dr Razak's name be erased from the medical register. It also goes, almost without saying, that, if the most serious of those charges were found not to be justified, it would follow that the direction of the Committee would have to be reconsidered.

[9]The basis of this appeal is that the Committee were wrong to have accepted the evidence, principally of Miss A, to the effect that Dr Razak had committed the specific acts of which he was found guilty. It is said on his behalf that the case depended almost entirely on the testimony of Miss A before the Committee; that that testimony was, to a substantial extent, inconsistent and lacked credibility and, therefore, should not have been accepted by the Committee. In addition, it is pointed out that the Committee did not accept certain of the allegations made by Miss A and by the GMC and it is submitted that there is an inconsistency between the decisions of the Committee in relation to those charges which it found proved, in particular in paragraph 3, and those which it found not to have been proved.

[10]It is, in addition, contended in the notice of appeal that the case against Dr Razak should have been stopped at half-time, that is to say after the completion of the evidence for the GMC, on the basis that no Committee, properly instructed and acting reasonably, could have come to the conclusion that Dr Razak was guilty of the matters alleged against him on the evidence as it then was.

[11]Happily, there is no significant difference between the parties as to the legal test to be applied in the case such as the present. So far as the contention that the case should have been stopped at half-time, effectively on the basis that there was no case to answer, Mr Dunning accepts that there is a distinction between the jurisdiction of the Committee and the criminal jurisdiction. The jurisdiction of the Committee is primarily regulatory. Its object is to protect the public, and indeed the medical profession from those, who by reason of their lack of competence, lack of qualification or misconduct, should not be permitted to practise in the medical profession in this country, or are deserving of censor or some other appropriate punishment such as an admonition.

[12]In my judgment, on an appeal in a case such as the present, the Court should take into account all the evidence that was before the Committee and not restrict itself to the evidence as it was at the close of the case for the General Medical Council. This jurisdiction differs from the criminal jurisdiction, the object of which is, of course, to some extent, to protect the public, but is primarily a jurisdiction exercised for the purpose of punishing crimes. This is a regulatory jurisdiction. It would be surprising if the Court, on an appeal such as this, were required to quash a decision of a Disciplinary Tribunal in circumstances where, although the case might have been stopped at half-time and perhaps could have been on the basis that there was no case to answer, the evidence given on behalf of the respondent supported, in material respects, the case against him.

[13]Mr Dunning did not dispute this analysis of the jurisdiction of the Appeal Court. It follows that I have to consider all the evidence that was before the Committee in determining whether or not this appeal should be allowed and, if so, to what extent.

[14]Secondly, this Court cannot, on the appeal, rehear the evidence that was before the Tribunal. The object of this appeal is to determine whether or not the Committee acted reasonably and lawfully in arriving at its decision. It is the Tribunal of fact. It is the Tribunal which must determine the credibility of the evidence put before it on both sides. The role of the Court, on an appeal such as the present, is very similar, if not identical to the role of the Criminal Division of the Court of Appeal on an appeal from a finding of guilt or findings of guilt by a jury. If it is suggested that the evidence before the Tribunal of fact was inconsistent and could not justify the decision which was arrived at, the question of the Court is whether, on the evidence that was before the Committee, a reasonable Committee, properly instructed as to the law, could have arrived at the decisions it did.

[15]So far as the allegations of inconsistency are concerned, it is trite law that the fact that a tribunal of fact does not accept some of the evidence of a witness does not lead to the conclusion that other evidence of the same witness was not evidence on which a finding of guilty could be based. It is possible and lawful and reasonable for a tribunal of fact to decide that certain statements made by a witness are so credible that it can be sure that they are true, whereas other statements, although made in relation to the same defendant or respondent and in relation to similar matters, are such that it is not sure that they are true, in which case, of course, there is a finding that if it is not proven that the defendant in the criminal case or the respondent in a case such as the present did not commit the acts alleged.

[16]The difference in decisions may arise because of differences in surrounding facts, the existence or absence of other evidence supporting allegations made by a witness. It may arise because of improbabilities in certain parts of a witness's testimony. It may arise because of concessions made during the course of the live evidence of the witness. It may arise as a result of the manner in which the witness deals with questions put to him or her. Whether the entirety of the evidence of a witness is so credible that the Tribunal of fact can be sure that it is true, or whether only parts are, or none are, are eminently matters for the tribunal which hears that evidence and is the tribunal of fact.

[17]So far as jury trials are concerned and the role of the Court of Appeal, the law is set out in R v Durante

(1972) 56 Cr App R(S) 708

at 714 by Edmund-Davies LJ. To succeed, an appellant must show that verdicts are logically inconsistent and, in addition, that they are so inconsistent as to demand interference by an appellate court. It must be shown that there is no sensible way in which the inconsistent verdicts can be explained. An example of logical inconsistency would be a criminal case in which a defendant is charged with possession of a firearm and with wounding by shooting a victim. It would be logically inconsistent to convict him of wounding with a firearm and to acquit him of possession of a firearm. On the other hand, it does not follow that where there are two allegations of, for example, rape, and a jury accepts one and finds a defendant guilty of it while acquitting him of the other, that the two verdicts are inconsistent so as to require interference by an appellate court. There may be rational reasons for the distinction. It is only if a defendant/appellant can show that there is no rational explanation for the difference in decision that an appellate court can and must interfere.

[18]The present appeal depends to a significant extent on inconsistencies in the evidence of Miss A before the Committee. It is evident that the consideration of evidence by a witness such as Miss A calls for considerable care and caution on the part of a tribunal of fact. I say that for a number of reasons. The principal is that this case concerned a lady who had, as is common ground, a psychiatric condition and was being treated for that condition. Inconsistencies in evidence, differences between different accounts of alleged incidents may, of course, be due to the fact that they are fiction. However, a Tribunal must take into account the mental condition of the witness and the subject matter of her evidence. The present subject matter relating of course to alleged improper sexual relations and an improper relationship having a sexual element between herself and a psychiatrist.

[19]It is for the Committee to determine, in the light of all the evidence before it, including the evidence of Dr Razak, whether those inconsistencies were due to the fact that the allegations were false or to other matters, such as the mental state of Miss A or the length of time since the alleged events and the date of her testimony and, indeed, the dates when she first made a statement in relation to the alleged events. Inconsistency of itself does not necessarily lead to the conclusion that the Committee could not have been sure that what was being said by Miss A was true.

[20]The further point to bear in mind is this. All of the specific allegations contained in the charges, that is to say in paragraphs 3 and 4, were relevant to the Committee's consideration of each of them. Clearly, for example, if there had been indecency between Dr Razak and Miss A on an occasion, and the Committee were sure that that had taken place, that matter would be relevant to the allegation that there had been sexual intercourse between them. Conversely, if there had been sexual intercourse between them, that said much about the nature of their relationship.

[21]One of the matters which the Committee were entitled to take into account was that alleged in paragraph 4 of the charges and conceded by Dr Razak. The Committee were entitled to consider whether there was a good explanation for the failure of Dr Razak to document his interventions with Miss A other than that there had been an improper relationship between them.

[22]Mr Dunning has, sensibly, focused his attention on the more serious allegations against Dr Razak, namely the allegations of sexual conduct. It nonetheless remains the case, as we have already stated, that in considering those allegations it was for the Committee to take into account all of the evidence before it, including the evidence relating to the other charges.

[23]The first of the specific allegations addressed by Mr Dunning in the course of his able submissions was paragraph 3i of the charges. That related to an allegation that Dr Razak had collected Miss A from the Peacock Public House, driven to Drax Power Station and, while there, indecently assaulted her. As I have already stated, the Committee found that allegation to have been proved. The relevant evidence begins with paragraph 9 of the witness statement of Miss A. She stated this:

"On another occasion, I was at The Peacock public on a Friday evening. I had had a great deal to drink and was drunk. Dr Razak rang me on my mobile phone and said that he wanted to see me. He came and picked me up. I had had a lot to drink and dozed in the car. The next thing I was aware of was being at an open space near Drax Power Station. It was waste ground in the middle of nowhere. It was between 7.00 or 8.00 pm. I felt frightened. Dr Razak assaulted me. He tried to get my breasts out and put his hand down my trousers. I said that I wanted to go home and I kept saying it. His behaviour sobered me up. I was shocked. He said he was my friend, but I got out of the car. He then brought me home. Dr Razak said that he would see me the following day."

In a later passage in that witness statement she said:

"Dr Razak visited my home about 6 or 7 times. He told me to stop taking the tablets which Dr Brown had prescribed for me. He said that Dr Brown was wrong and that there was nothing wrong with me. On another occasion at the same spot at Drax Power Station, I mentioned to him that at some point I might want to have children. He said that he would give me a child. I said nothing in reply."

[24]On a first reading of the witness statement Miss A was referring to two incidents at Drax Power Station at least two visits, two or near Drax Power Station. The witness statement, however, is not entirely clear and the reference to the other occasion, at the same spot, at Drax Power Station could conceivably have been a reference to an occasion other than when Dr Razak had visited Miss A at home.

[25]Miss A gave evidence before the Committee and was asked in her evidence in chief about the incident, which formed the subject of this charge. She mentioned that she had gone for a meal with Dr Razak. She was asked when. She could not remember the month. He said he had picked her up outside the public house in Goole. The name of the public house was The Peacock. He knew that she was there at the Peacock because they had spoken on the telephone and had arranged to pick her up from the pub. She said that she had been collected by him at about five-ish. She said she had been drinking and she would describe herself as quite merrily drunk. She referred to a friend coming out and verbally abusing Dr Razak when she was collected. She then said she had gone to the place where she worked with Dr Razak, to call in and have a few words with a colleague. She said she went to a restaurant in Scunthorpe with him and, after going to the restaurant in Scunthorpe she said when asked where she went with him, she said:

"I seem to remember I could not figure out to begin with. It was some waste ground near Drax Power Station."

She said that it was a long drive from Scunthorpe, and that his behaviour became inappropriate. When asked to state what he did, she said:

"He tried to put his hand down my top and down my trousers"

. Asked whether he had touched her she said he had. Asked where, she said:

"He touched my breasts"

. She was asked about her statement, that he had tried to put his hand down her trousers and asked whether he actually touched her. She said "no". She was asked whether when he touched her breasts it was under or over her clothing and she said: "under my clothing". Asked how she reacted, she said she was very shocked. She told him to get off her. He carried on being persistent. She demanded that he take her home, which he did but not straightaway before doing so he "just carried on, carried on trying to try it on." He was touching her under her clothing. She was asked: "You pointed to your breast area, the top half of your body. Did he try to touch you anywhere else?" She said: "He tried to put his hand down my trousers but I pushed him away." That description of the alleged indecent assault at the Drax Power Station is broadly consistent with her witness statement.

[26]She was cross-examined about the incident. She was taken to her witness statement. When asked about the meal in Scunthorpe, she said:

"That was on another occasion."

Mr Lofthouse, who appeared for Dr Razak, asked her:

"That is not the way I understood it. There were two occasions when this happened. On two occasions Dr Razak collected you from a public house. On one occasion he took you straight to Drax power station and assaults you. On another occasion he takes to Scunthorpe and then Drax Power Station and assault you."

She said:

"Yes. Q: Why did you not question why did not put that in your statement. A. Why do we not do a lot of things."

It was put to her that it was not true. She asserted that it was true. She was asked why Drax power. She said it is in Goole. She did not know why he had taken her to Drax Power Station. Dr Razak obviously knew it existed. She had not.

[27]There was an inconsistency there between that account and what occurred and her earlier account in that it referred to two incidents at Drax Power Station. She was re-examined on that incident. She was asked this:

"You said before that incident you had been for a meal. You seem to be saying to my learned friend that there were two incidents, one where you had been for a meal and one where you were collected from work. Was there one incident when you went to Drax Power Station or two? A. One incident."

[28]She was there, it seems, reverting to the evidence given in her evidence in chief and in her witness statement. She was asked what happened on the evening she went to Drax power station. Had she gone for a meal first? She said No. She was asked:

"Was there ever a time when you went for a meal with Dr Razak" and she said "yes"

. She was asked:

"Was that before or after you had been to Drax Power Station?"

She said:

"Before, possibly a week before."

[29]Mr Dunning submits that, on the basis of that contradiction, a reasonable Tribunal of fact could not be sure that the indecent assault took place. As I have already indicated, in my judgment, it would be wrong to assess the evidence in relation to that incident in isolation. Even viewing it in isolation, the question for the Committee was whether the contradiction, which clearly there was between the two accounts, that is to say: was there one incident at Drax or two? was due to genuine confusion on the part of the witness, or was due to the fact that her evidence was untrue, or at least that the contradiction was such as to render her evidence so unreliable that it could not be sure that the incident charged took place. In my judgment, a reasonable Tribunal, properly directed, could determine that the contradictions were not such as to render Miss A's evidence so unreliable that they could not be sure that the incident took place. Her account of what did occur, in terms of the indecent assault, when she gave her oral evidence, was entirely consistent, so far as is material, with her original account in her witness statement.

[30]I would say, further, that the matters to which I shall refer in due course were relevant to the Committee's assessment of the evidence of Miss A and its acceptability. In my judgment, together with the consistency of her account, that meant that a reasonable Tribunal could be sure that the facts alleged were proved. That is not to say that a reasonable Tribunal could not have found that they were not proved. But it was for the Tribunal itself to determine whether or not it could be sure, on the basis of the evidence I have referred to, against of course the fact that Dr Razak entirely denied the allegation in question.

[31]I turn to the second matter to which Mr Dunning referred and on which he relied, that is to say the allegation that there had been sexual intercourse between Dr Razak and Miss A at the Stewart Hotel in Scarborough. It goes without saying that, if that were proved, it would be clear that there was an improper relationship between Miss A and Dr Razak.

[32]Miss A's evidence in chief on this begins at page 63 of the trial bundle. She was asked what had happened when she got to the hotel in Scarborough. She said they had unpacked, had a cup of tea and went straight out to the Pizza Hut. She said that she did not want to be there. The only reason she went with Dr Razak was because she was under a lot of stress with the lady with whom she lived, whose name was Elaine, and she thought about getting away for a weekend. She was asked whether when she had, when they had their meal they had gone straight back to the hotel and she said:

"Not straightaway. Because I had lost the hairbrush I had to go and buy another hairbrush, but I had no money. He [that is Dr Razak] bought me a hair brush and some heartburn tablets."

She was asked were there any other problems while in the restaurant, any difficulty while there. She said she had not liked his attitude. He was a bit annoyed because he wanted a value meal and they did not do it on a Saturday and had to pay the full cost of the pizza:

"Is there anything else you can remember about the conversation or anything that took place while you were out and about on that Saturday evening that sticks in your mind?"

She said:

"No, because [Dr Razak] just wanted to go straight back to the hotel and that was it."

She was asked what happened when they went back to the hotel. She said she was having a lot of difficulty. The telephone kept ringing. It was Elaine. She did not know where she was and thought that she, Miss A, had left her. She was threatening suicide. She was asked whether Elaine had psychiatric difficulties. She said she did not. She, Miss A, said she was feeling upset by the telephone calls. She had told Dr Razak what Elaine had said and he had insisted that she switched off her telephone. Miss A wanted to go home. She told Dr Razak that. He would not take her home. She felt anxious and she said that Dr Razak just wanted to have sexual intercourse with her. She was asked whether he did anything before they had sexual intercourse. She said "No". She was asked when she was asked about her reaction to his wanting to have sex with her and she had said she did not, but that he had persisted, notwithstanding her continual refusal and she had ended up having sexual intercourse with him. She gave the duration of the time when he was trying to persuade her and she was refusing so far as sexual intercourse was concerned. She described what had happened the next day that he had taken her home but had dropped her at a car park about a mile from her home where her car was parked. It can be seen that there was collateral detail in her account. I refer by way of example to the question of the meal and the cost of the pizza. Evidence such as that may of course result from elaboration of an untrue story put forward by a witness. On the other hand, they may be the sort of detail that a witness remembers because events did take place. It was for the Tribunal to determine whether it could be sure that the detail was such as to indicate that the incident had indeed taken place. I see no basis for an appeal court to decide that the view taken by the Committee in relation to matters such as that was one which was in any way perverse. She was, of course, cross-examined about what had happened at the hotel. Dr Razak's case was that he had never gone to that hotel with her and had never had sexual intercourse with her. She was asked why she had agreed to meet him if she did not want to go Scarborough. Why she had not refused to tell him on the telephone. She was asked about her uncertainty as to when the weekend in Scarborough had taken place and she was asked about her relationship with Elaine, having regard to her evidence that she had received numerous telephone calls from Elaine who was threatening suicide. Her evidence, in relation to Elaine, was that their relationship was not a physical relationship at all at this time. Initially she said that the relationship had never been a physical relationship. Eventually she conceded that there had been a physical element in their relationship during its first year. One of the oddities relied upon by Mr Dunning is that the evidence of Miss A was that, she had thought, come to a negative view as to Dr Razak and her relationship with him following Scarborough. He points out the fact that the incident at Drax Power Station had been earlier and, if that had occurred, it would be curious and extreme, that a similar conclusion was not arrived at by Miss A then. In my judgment, that comment, while well made, is not such as to lead a Tribunal to conclude that Miss A's evidence could not be relied upon, in the sense that they could not be sure that, in so far as the incident at Scarborough was concerned, it had taken place. In re-examination she was asked to give further details in relation to the hotel in Scarborough and to describe it, and she did so. Dr Razak gave evidence about this incident. I have already stated that he denied that he had gone to Scarborough with Miss A and denied being at the Stewart Hotel with her. He did, however, admit that he had been at the Stewart Hotel in Scarborough during June. The cross-examination went as follows:

"Q. I just want to ask you about the Stewart Hotel and your trip to Scarborough, because you did go to the Stewart Hotel, did you not? A. I did not go. Q. You did go to the Stewart Hotel? A. I did not go. I mean I did not go with her. Q. That is not what I asked you. You did go to the Stewart Hotel, did you not? A. Well, I refer to my statement. Q. And you went to the Stewart Hotel and stayed over on a Saturday night, did you not? You went on 16 June - you, personally? A. Yes. Q. Who did you go with Dr Razak? A. I refer to my statement. Q. You do not tell us in that statement. Who did you go with? A. A business meeting. Q. That is the purpose, so you said; the question is, who did you go with? A. I cannot disclose this. Q. You see, you were asked about this by Dr Talbot Mr Hostick, were you not, during the course of the investigation by the Trust [the reference to the NHS trust] A. Yes. Q. And did you not tell them you went with somebody who was abroad at the time? A. Yes, that is what I said in the meeting."

He was pressed to disclose with whom he had a meeting at the hotel and he declined to say. He was then re-examined on the subject by Mr Lofthouse:

"Q. You declined to give the name of the individuals, the business contact you had, when you went to Scarborough. Why is that? A. Because of the confidences. I can tell you it was a lady from Russia with a friend from London. They came for a business meeting. Q. Can you elaborate on that? A. Is it necessary, Mr Lofthouse. Q. I think it would assist, yes [said Mr Lofthouse]. A. A lady came from Russia to make tourist business here. Because she has not got a British passport she wanted someone, so my friend suggested my name and I get some share of that, and so I met them. Q. Did you decline that business offer? A. It did not go through."

And then he was asked for the friend's name and said Mr Saddam - Mr Hardi. He was asked whether he had an affair with the Russian lady and he said no.

[33]In his evidence, to which I have just referred, Dr Razak referred to his witness statement. What is said about Scarborough in the witness statement was this:

"I never took Ms A to Scarborough in June 2001 or any other dates. As no dates are provided it is difficult for me to ascertain exactly where I was at the alleged time but can say that most weekends are spent with my family who would be surprised if I was absent without good reason for a weekend. On 11th - 17th June which includes the weekend of the 16th and 17th June 2001, I was on call. I did have a meeting of a business nature in Scarborough around that period of time. I again categorically deny that I had sexual intercourse with Ms A at the Stewart Hotel or any other place."

In cross-examination Dr Razak was also asked how it was that Miss A was able to identify the Stewart Hotel as the hotel in which he had stayed in Scarborough. He said that he had been telephoned by her in Scarborough. He had said he was in Scarborough. He was asked whether he had told her the name of the hotel and said he could not remember:

"Q. Because Scarborough is a seaside place and there are lots of hotels and guest houses. If you had not told her the Stewart Hotel how would she know? A. I do not know. I mean Scarborough I may have told her. Q. She seemed to know quite a lot about it, did she not. The car park, car parking ticket - throw the ticket away on the way home. A. I did not do that at all. Every hotel has a car park, this is familiar. Q. Do you not appreciate Dr Razak that it might be of some assistance to counsel if you were able to bring before them the people that you stayed at the Stewart Hotel with to say: Yes, we stayed, we stayed that night. All legitimate business purpose. Do you not think that might have helped you. A. I have no comment."

[34]The fact that Miss A was able to identify the Stewart Hotel as a hotel in which, as was admitted, Dr Razak had stayed, was a material fact to be taken into account by the Committee. It had to decide whether or not it was reasonably possible that Dr Razak's account of his visit to the hotel in Scarborough and of the means by which Miss A had learnt of the name of the hotel and that he had stayed there might reasonably be true. On one view of his evidence it was evasive. I refer to his repeated references to his witness statement, where another witness might have given his account of his going to Scarborough, and his evidence of its purpose and with whom he spent the weekend. His reluctance to identify those with whom he had spent the weekend and the vagueness of his description of the purpose of his visit to the hotel were relevant matters to be taken into account. Looking at the evidence as a whole, I see no basis on which it could be concluded that the evidence of Miss A was such that the Tribunal could not be sure that she had spent a weekend in Scarborough at that hotel, with him, and, if they did so, that the purpose of their going to Scarborough together was that they should have sexual intercourse, as indeed they did.

[35]The third allegation referred to by Mr Dunning was that during a visit by Dr Razak to Miss A at her home he had touched her leg for a sexual purpose, that is to say not in order platonically to comfort her but in order to further a sexual relationship with her. In considering that allegation it is right to bear in mind that Dr Razak admitted that he had visited Miss A at home. He also admitted that his visits to her home had not been documented by him as they should have been. The fact that he had visited her at home and the fact that his visits had not been documented were matters which were relevant to the Committee's consideration of all the evidence and could be taken by them to support the allegation that there had been an improper sexual relationship between Dr Razak and Miss A. He admitted that, during a visit to her home, while they were both sitting together on a sofa, he had taken her hand out of friendship. The allegation that he had touched her leg was not in Miss A's witness statement. As a result, it did not appear as an allegation in the charges. It was referred to during her evidence in-chief, from page 55 of the trial bundle. Elaine, the lady with whom Miss A lived, was present in their home at the time. Miss A was asked:

"When he was sitting with you on the sofa, you have described how you were close by each other. Was there any contact between the two of you at all? A. He touched my leg. Q. Which part of my leg? A. Here. Q. You are pointing to the top outer part of your thigh. Can you describe how touched it? Was it a brushing or a gripping or a patting? How did he do it? Like a rub? A. Not a rub. .... Q. Did he touch any other part of you? A. No."

She was cross-examined. It was pointed out to her that she had not referred to his touching her leg in her statement. She repeated that the incident had had happened, and she said that her partner, Elaine, had seen it happen. She was asked whether Elaine had said anything, and the answer was:

"Yes, alarm bells rang, she did not like him."

Mr Lofthouse for Dr Razak said:

"Will she be saying that later?"

The answer was:

"I do not know what she will be saying."

It was put to her that nothing indeed had happened of that kind.

[36]Mrs A's partner did give evidence. She had not been present when Miss A's evidence was given. She said this:

"Dr Razak came in and they [Miss A and Dr Razak] both went into the living room. I was in the kitchen. So I was sitting at the kitchen table facing the glass doors. He sat on the settee on the right-hand side, Miss A sat on the other one and he kept patting the cushion. Q. Let us just pause there. In your living room is there one sofa or two? A. Two."

She was asked how they were positioned and she indicated, and she stated on which sofa Dr Razak was sitting, and she said that she had seen Dr Razak pat the seat (presumably next to him) for Miss A and she said that Miss A went and sat next to him. Asked what happened next she said she (Elaine) was reading and she kept glancing up and:

"I noticed he was touching her leg and he was very close to her, very close up to her."

She said that it just did not seem right. She was asked with what he touched her leg. She said his hand. Asked where. She said on Miss A's thigh and the upper outer thigh. Asked:

"Did it appear to be a rub or a squeeze or a stroke, how would you describe it?"

She said:

"He was stroking her leg."

Asked what she then did, she said that she had carried on, Elaine said I could not "you know what I mean, it just did not seem right. He was too in her face, you know too intimate." She stayed in the kitchen; she did not go into the room where Dr Razak was or where Miss A was and that Dr Razak had left after 15 or 20 minutes.

[37]Mr Dunning refers to the fact that the account of the touch there is not quite consistent with that of Miss A. In my judgment, looking at the matter broadly, the evidence of Elaine was supportive of that of Miss A on this incident. There remains the fact that the incident was not referred to in the witness statement. That could be due, as in other cases, to the fact that it was or was possibly a late invention, in which case the credibility of Miss A would have been significantly affected. However, having regard to the evidence of Miss A's partner, it would not be surprising if the Committee came to the conclusion that the incident had taken place, notwithstanding that it was not referred to in the usual witness statements or in the charges or, more importantly, that the evidence in relation to that incident, which was not the subject of a charge, was not such as to lead them to the conclusion that any of the evidence of Miss A which they were minded to accept was evidence on which they could not safely rely in determining a charge.

[38]There were other inconsistencies referred to such as that as to the duration of physical relationship between Miss A and Elaine. Miss A's evidence was that the relationship was physical for about a year, Elaine's for something like 2 years. Having regard to the passage of time since the relationship had ceased to be physical, it seems to me that there is no real inconsistency between those two accounts of a kind which ought to lead a reasonable Tribunal to reject the evidence of either of those persons.

[39]Lastly, there was a reference to a lie admittedly told by Miss A, when she telephoned Dr Razak at home, saying that she was a CPN (community psychiatrist nurse) rather than divulging her real identity. It seems to me that is precisely the kind of lie one might have expected if indeed there was a sexual relationship between Miss A and Dr Razak.

[40]Looking at the evidence generally, bearing in mind the fact that the hotel in Scarborough was identified by Miss A, bearing in mind that Dr Razak accepted that he had visited Miss A at home on a number of occasions which were not documented, it seems to me impossible for me to conclude that a reasonable Tribunal could not have concluded that it could safely rely on Miss A's evidence in relation to the charges that were proved so as to conclude that it was sure that they had been committed.

[41]There were a number of charges, as I have already indicated, which were found not to have been proved. I see no necessary inconsistency between the decisions on the charges which were not proved and the decisions that were proved as to justify inference by this Court. A number of them are to be explained by the fact that they were not proved by Miss A when she gave her evidence or by the fact, when referring to statements that were she said made by Dr Razak, she had not treated them seriously. If she had not treated them seriously; in other words they were said facetiously and, if that evidence was accepted by the Tribunal, it was entitled to find that the making of those statements did not constitute a disciplinary offence because they would not be improper and professionally potentially detrimental to her care, not in her best interest or likely to bring the medical profession into disrepute.

[42]All in all, I have come to the conclusion that there is no good ground to interfere with the decision of General Medical Council so far as it findings of guilt are concerned. That being so, there is no basis to interfere with the direction it made and this appeal must be dismissed. (Submission re: Sanctions)

[43]MR JUSTICE STANLEY BURNTON: This is a tragic case in a number of respects. There is substantial evidence before me that Dr Razak was and is an excellent psychiatrist, whose services are required by the community. There is evidence that all of his family suffer from illness; in two cases very serious illnesses. It is evident that someone so qualified cannot, in any obvious way, earn his living except in his profession. He has given good service for some 26 years. This is an isolated blemish on an otherwise fine professional career. It is right that the allegations against him relate to only one patient and that there have been many far worse cases that have come before the General Medical Council and indeed the courts. The question for me, however, is whether erasure, which is the most serious of the determinations which may be made in a case such as the present, can be said to be an excessive and possibly manifestly excessive penalty.

[44]The penalty was, as Mr Dunning accepts, in line with the indicative sanctions guidance for the Professional Conduct Committee published by the General Medical Council. I refer to paragraphs 21 and 27 and in particular to paragraph 27 which refers to sexual misconduct.

[45]The conduct of which Dr Razak was found guilty was serious, not only by reason of the fact that it was sexual conduct between a doctor and a patient, but by reason of the fact that the patient in question was a vulnerable person who was receiving psychiatrist treatment. It is not possible to identify any material fact which the Committee failed to take into account in considering the appropriate determination to make. It took into account the references which have been provided in respect of Dr Razak and his personal position, his career as well as the indicative sanctions guidance.

[46]I regret to say that I have to come to the conclusion that the Committee's decision cannot be described as an excessive determination of the appropriate step to take in relation to conduct of this kind, that is to say, the pursuing of a sexual relationship with a psychiatric patient, including sexual intercourse with her by a psychiatrist.

[47]I have taken into account the tragic and drastic effects of the sentence on Dr Razak but I have to bear in mind the importance of severe steps being taken in cases where it is necessary both to protect the public and to maintain the public's confidence in the profession, and its confidence that there will be no inappropriate conduct by doctors, who face serious sanctions in the event that they are guilty of such. In those circumstances, as I indicated earlier, it seems to me that the determination cannot be described as excessive. It was clearly one open to the Committee, and I must reject the appeal against its sentence. Thank you both very much.

[48]MISS BAXTER: There is one outstanding matter, I do not know whether it is appropriate to deal with it now, the question of costs.

MR JUSTICE STANLEY BURNTON: If you do not deal with it now when will you deal with it?

[50]MISS BAXTER: I do raise it now. As I understand it, given this is an appeal listed for a day, it is appropriate to deal with it now.

[51]MR JUSTICE STANLEY BURNTON: You are talking about summary assessment. Has a schedule been served?

[52]MISS BAXTER: It was and it is in the bundle.

MR JUSTICE STANLEY BURNTON: Have I seen it, I am not sure?

[54]MISS BAXTER: It should be in the bundle of documents.

[55]MR JUSTICE STANLEY BURNTON: I saw it was there but I did not look at it. The total of £7,868.

[56]MISS BAXTER: My Lord, yes.

[57]MR JUSTICE STANLEY BURNTON: Including VAT. Does the GMC reclaim its VAT?

[58]MR JUSTICE STANLEY BURNTON: Are you asking for an order inclusive, you are asking for £7,868 and not £6,696. Is that right?

[59]MISS BAXTER: My understanding of the position is notwithstanding its reclaimable from the Customs and Excise it still has to be claimed at this stage but if I can take specific instructions. My understanding of the position, those fees chargeable for VAT therefore I have to claim it at this stage. It does include that VAT.

MR JUSTICE STANLEY BURNTON: Mr Dunning, do you say anything first of all about the principle?

[61]MR DUNNING: Costs usually follow the event. Mr Razak is legally aided. I do not know whether these days that makes a difference. Certainly it used to.

MR JUSTICE STANLEY BURNTON: He is in receipt of community funding.

[63]MR DUNNING: A representation order.

[64]MR JUSTICE STANLEY BURNTON: I am not sure that is the same thing. There is nothing on the file. Assume for the moment it does not make a difference. If your researches discover that it does, I give you leave now to make submissions in writing and I shall, if I do make an order for costs against Dr Razak as I apprehend I shall, I shall direct that it is not to be drawn up for 14 days to give you both an opportunity to consider whether it is appropriate to take into account the funding. What about the amount?

[65]MR DUNNING: The schedule is here. They having had the schedule there is really very little I can say about it. It does seem a large amount but there we are.

[66]MR JUSTICE STANLEY BURNTON: Just looking at it, I cannot see any item which hits me in the eye as being excessive. I see much larger bills for much shorter hearings frankly.

[67]MR DUNNING: Yes. Certainly I suppose my submissions would have to be directed not at the principle but at the practicabilities of the ability to pay.

MR JUSTICE STANLEY BURNTON: That comes in, I am afraid, at another different stage, yes.

[69]The GMC is entitled to its costs. It has put in a schedule showing costs of £7,868. I see nothing unreasonable in that schedule. I therefore summarily assess its costs in that sum and order they be paid by Mr Razak, presumably as he is now. I direct that the order shall not be drawn up for 14 days. I give leave to both parties to make written submissions, if it is considered, on behalf of the appellant, that his legal assistance requires or justifies some different order. Those are to be addressed to me at the Court. I shall deal with them on paper. That seems to me to be the cheapest way of dealing with it. If I do not hear from you the order will be drawn up.