Chyc v General Medical Council [2008] EWHC 1025 (Admin)

[2008] EWHC 1025 (Admin)Case No CO/6641/2006
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 09/05/2008
Before
THE HONOURABLE MR JUSTICE FOSKETT
Between
DR ANTHONY CHYCAppellantGENERAL MEDICAL COUNCILRespondent
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Neil Garnham QC (instructed by Eastwoods Solicitors) for AppellantMartin Chamberlain (instructed by GMC Legal) for RespondentHearing Hearing dates: 6 th and 7 th May 2008
JudgmentMr Justice Foskett :Introduction
[1]On 12 July 2006, following a hearing lasting 18 days, Dr Anthony Chyc (“The Appellant”) was found guilty of serious professional misconduct by the Fitness to Practice Panel of the General Medical Council (“The Panel”) and his name was erased from the medical register. He appeals against those decisions to this court pursuant to Section 40 of the Medical Act 1983.[2]It is common ground that, as the result of the date upon which the allegations against the Appellant were referred for adjudication, the Panel had to apply the old procedural rules and that the old Section 40 the Act applies.[3]The old Section 40 provided that a decision to erase a doctor’s name from the register is an appealable decision; that the appeal must be made within 28 days to the relevant court; that the relevant court is the High Court; and that the relevant court has the power to: i) dismiss the appeal; ii) allow the appeal and quash the direction or variation appealed against; iii) substitute for the direction or variation appealed against any other direction or variation which could have been given or made by the committee concerned; or iv) remit the case to the committee concerned to dispose of the case in accordance with the directions of the court.[4]An appeal under these rules does not require permission to appeal. The appeal is technically by way of rehearing, but in reality involves a review of the evidence and material before the Panel in accordance with the parameters set out in Gupta v GMC [2002] 1 WLR 1691 and Ghosh v GMC [2001] 1 WLR 1915, conveniently summarised by Stanley Burnton J, as he then was, in Threlfall v General Optical Council [2004] EWHC 2683 (Admin) at paragraph 21 where said this:
“Because it does not itself hear the witnesses give evidence, the court must take into account that the Disciplinary Committee was in a far better position to assess the reliability of the evidence of live witnesses where it was in issue. In that respect, this court is in a similar position to the Court of Appeal hearing an appeal from a decision made by a High Court Judge following a trial. There is, however, an important difference between an appeal from a High Court Judge and an appeal from a Disciplinary Committee. The Disciplinary Committee possesses professional expertise that a High Court judge lacks …. This court appreciates that such a Disciplinary Committee is better qualified to assess evidence relating to professional practise, and the gravity of any shortcomings, and it therefore accords the decision of the Committee an appropriate measure of respect, but no more: see Ghosh v General Medical Council [2001] UKPC 29, [2001] 1 WLR 1915, at [33] and [34] and Preiss v General Dental Council [2001] UKPC 36, [2001] 1 WLR 1926 at [26] and [29]. These decisions make it clear that the court should be more ready to overrule a disciplinary tribunal than previously appeared to be the case. It however remains the position that an appellant must establish an error, of law or fact or of judgment, on the part of the tribunal.”
[5]Although I have referred to that convenient summary, I should, I think, quote what was said in Gupta v General Medical Council [2002] 1 W.L.R. 1691, where the following appears:
“[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] A.C. 484, 484-488.”
The passage from Lord Thankerton’s opinion is as follows:
“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.”
[6]In relation to the sanction imposed, and the approach to reviewing it in this court, my attention has been drawn to the case of Fatnani Raschid v General Medical Council [2007] EWCA Civ 46 where Laws LJ (with whom Chadwick LJ and Sir Peter Gibson agreed) said this:
“As it seems to me the fact that a principal purpose of the Panel's jurisdiction in relation to sanctions is the preservation and maintenance of public confidence in the profession rather than the administration of retributive justice, particular force is given to the need to accord special respect to the judgment of the professional decision-making body in the shape of the Panel.”

Background

[7]One event that gave rise to one of the allegations against the Appellant took place a good many years prior to the proceedings before the Panel and related to the time when he was a General Practitioner in Croxteth between September 1989 and September 1991. Other allegations related to matters that were alleged to have occurred when he was in practice as a General Practitioner in Colchester between 1997 and 2002.[8]The allegations found proved by the Panel can be summarised as follows: i) That during a domiciliary visit to Ms P on 30 April 1990 the Appellant behaved improperly and abused his position of trust by fondling her breast during an examination and asking if he could kiss her. ii) That on an occasion in 1998 (by which time the Appellant was in practice in Colchester) he behaved indecently and inappropriately towards Mrs A, the Practice Manager, who at the time was undergoing matrimonial difficulties, by embracing her, rubbing his hand in a circular motion on her back and pressing his erect penis against her. iii) In the period from May 1999 to December 2002, the Appellant failed to refer a total of 22 patients to specialist practitioners when they should have been so referred. iv) In the period from April 1997 to December 2002 the Appellant mismanaged documents relating to 66 patients by failing to file them properly.[9]Certain of the allegations within (iii) and (iv) were admitted, but (i) and (ii) and a number of features within (iii) and (iv) were contested. I will deal with the arguments in support of the appeal against each of these allegations separately, each allegation being separate in any event.

Ms P

[10]As I have indicated above, the allegation arose from a domiciliary visit on 30 April 1990. Ms P had asked for a doctor to visit because she was complaining of a suspected chest infection and breathing difficulties. This occurred at a time when, apparently, she and her husband were not on good terms, albeit they were living under the same roof. The allegation was that the Appellant arrived and, at Ms P’s husband’s invitation, let himself into the house and went to see Ms P who was in bed in her bedroom. Since the complaint was of a chest infection it was necessary for the Appellant to listen to her chest with a stethoscope and she alleged that during that examination he put his hand inside her nightdress, fondled her left breast and asked if he could kiss her. She became distressed, she said, the Appellant stopped and apologised, told her to stop taking the medicine and if the symptoms persisted to tell the surgery. At that point he left.[11]It was not disputed that the Appellant did pay a domiciliary visit to Ms P on that day in connection with a chest infection: that appeared from the records. The Appellant said that he had no independent recollection of the visit, but denied anything of the nature alleged either did take place or would have taken place.[12]It should be noted that an abuse of process application was made at the outset of the hearing because of the period of time that had elapsed between the alleged incident and when the Appellant first heard of it (namely, July 2003), some 13 years later. This application was rejected by the Panel and no appeal is brought in respect of that decision.[13]It is also not in issue that when the legal assessor gave his advice to the Panel before they considered their findings, he gave a clear warning that they should bear in mind the disadvantage that the doctor might be under in answering an allegation of such longevity. The legal assessor said that if the doctor had been disadvantaged it was “something to put in the balance when deciding whether the facts alleged are proved.” No complaint has been made about the guidance offered in this regard.[14]The Grounds of Appeal in relation to this allegation were these:
“The finding of fact in respect of the complaint by [Ms P] was unsupported by adequate reasons and/or was perverse. In particular: (a) the Panel failed to address the effects of delay of 7 years between the alleged assault and Ms P’s first report of the same or the delay of 16 years between the alleged assault and the hearing before them, (b) they failed to address at all the gaps, errors and contradictions in her evidence; (c) they failed to explain how they were able to accept her account of the assault and the resulting loss of trust in the Appellant as her GP given that she returned to see him in that capacity two days later and on a dozen or more occasions thereafter; (d) they failed to address the uncontroverted evidence that within three months of reporting the alleged assault, Ms P was suffering a psychotic illness, the effects of which had been noticed by her daughter three months before.” (a) the Panel failed to address the effects of delay of 7 years between the alleged assault and Ms P’s first report of the same or the delay of 16 years between the alleged assault and the hearing before them, (b) they failed to address at all the gaps, errors and contradictions in her evidence; (c) they failed to explain how they were able to accept her account of the assault and the resulting loss of trust in the Appellant as her GP given that she returned to see him in that capacity two days later and on a dozen or more occasions thereafter; (d) they failed to address the uncontroverted evidence that within three months of reporting the alleged assault, Ms P was suffering a psychotic illness, the effects of which had been noticed by her daughter three months before.”
[15]Mr Neil Garnham QC, who appeared for the Appellant before the Panel and before me, developed these grounds by submitting that the decision of the Panel to find this allegation proved to the criminal standard of proof was “so extraordinary” and so “bizarre” that it could not stand. In effect he was arguing that the decision was perverse.[16]In relation to this allegation the Panel said that, despite the time that had elapsed since the incident, Ms P’s “account of the salient features of the assault was cogent, credible and consistent throughout”. Mr Garnham, whilst recognising the hurdle he would have to surmount to overturn such a conclusion, submitted that this conclusion was, on true analysis, quite unsustainable and the Panel’s acceptance of her evidence was “simply extraordinary”.[17]A large part of Mr Garnham’s attack on the Panel’s finding related to the conduct of Ms P after the alleged assault took place. In the first place, and in the broadest sense, it apparently took 7 years before she mentioned the matter to anyone. I will return to this after I have identified the other specific matters to which Mr Garnham has drawn attention.[18]Again, in the broadest sense, it is plain that after the date when, if Ms P was correct, the assault took place she was seen and treated by the Appellant on at least a dozen occasions in the 17 months thereafter. That fact emerged from her GP notes that formed part of the material before the Panel. Many of these occasions were, perfectly properly and fairly, put to her by Mr Garnham during his cross-examination of her. This was against the background of what she had said in a statement she made in April 2003 in which she said: i) she had seen the Appellant approximately 5 months before the incident at the Surgery when he examined her back; ii) about 3 months before the incident her father had died and the Appellant had been very kind and supportive on an occasion she had been to the Surgery; iii) after the incident she “did not want [the Appellant] to come to [her] home again”. In answer to a question from Mr Garnham in cross-examination she agreed that, since the incident caused her to lose her trust in the Appellant, she would not have wanted to put herself in a position when he might act in a similar way again.[19]Analysis of the records showed that there was no evidence of complaints of back pain until after the alleged incident, but most pertinently for this purpose, in November 1990 the Appellant conducted a straight leg raising examination on Ms P and then eventually in May 1991 (on a home visit) he removed some stitches from her lower back following an operation that she had had. The argument advanced is that permitting those kinds of examination or intervention after a sexual assault of the nature suggested is, at the very least, odd given her attitude to the Appellant as expressed in the statement to which I have referred and indeed as expressed in cross-examination.[20]Mr Garnham also draws attention to the fact that only two days after the alleged incident, Ms P went to the Surgery and saw the Appellant there. He also relies upon the fact that, contrary to what she had said, Ms P’s father in fact died in January 1991 and that, accordingly, the kindness and compassion she had said that the Appellant had shown to her was thus something that occurred when they were alone together in the privacy of the consulting room after the incident had occurred. He suggested that neither of these things sat easily with the attitude to be expected of someone who had been subjected to a sexual assault by her doctor and indeed with the attitude to him that she said she had. Finally, he drew attention to a consultation that the Appellant had with Ms P in July 1991 when, according to the notes, they had a long discussion about her marital problems and the fact that she was attracted to another man. Ms P had not mentioned this in her statement, but she accepted when cross-examined about it that she had had such a discussion. Other matters were relied upon by Mr Garnham in his submissions, but these are perhaps the most significant, the essential thrust being that all of these things were so much at odds with the suggestion of a previous sexual assault as to render her evidence that such an assault occurred unbelievable.[21]In relation to the repeated contact they had in these period of 17 months, the additional point suggested is that it is incredible that she did not seek appointments with or attention from other doctors if she had truly been assaulted as she alleged.[22]These various considerations, coupled with the fact that the first time she apparently reported the alleged assault (some 7 years later) was at a time when she was beginning to become unwell mentally, made it impossible, it was argued, that credence could be given to what she said.[23]Looked at in the way presented by Mr Garnham, these matters do, of course, raise questions about the account given by Ms P. As a Fitness to Practice Panel of the GMC will inevitably know, a doctor can become the subject of a false or exaggerated allegation in circumstances where raising an answer to the allegation is extremely difficult. A doctor can, of course, simply be the subject of a misunderstanding in the way that an examination has been carried out. Matters such as those raised in relation to Ms P are legitimate areas for investigation before a tribunal of fact determining the truth or otherwise of what is alleged. But it is almost always (and I emphasise the word “almost” given the parameters within which an appeal from a tribunal of fact such as the Panel is considered by this court) how the witness against whom these kind of matters are raised deals with them in evidence that will shape the decision of the tribunal. How they are dealt with will, of course, be seen in the context of the rest of the evidence.[24]Ms P’s answer to the suggestion that it was incongruous that she should be prepared to see the Appellant again professionally after the assault was(a) that she did not think that she had any option but to take whichever of the doctors the surgery offered, whether at the surgery or on a domiciliary visit, and(b) that after the incident she always went to the surgery with someone (she mentioned the name of a particular friend who accompanied her) or, on the occasion the Appellant visited her home to deal with her stitches, that there was someone else in the house. Given the history of the number of appointments she had with the Appellant after the alleged incident, these were matters that would have required close attention by the Panel.[25]A review of the transcript reveals that, with the exception of the date of the incident itself, Ms P was extremely uncertain about dates and about the general chronology. Her explanation for being so certain of the date of the incident? That it followed by a day or two the success of her young daughter in a particular competition. Since she did not have access to her GP’s records when she first made the allegation some 7 years later, that she could come up with the date when, as a matter of fact, she was seen by the Appellant at her home in relation to a chest infection is a potentially telling point. Indeed the clinical note confirms that the advice she said she received from the Appellant was precisely as she said it was. The only matter upon which there was a difference of recollection in relation to the examination itself was in connection with a blood pressure reading: the notes indicate that the Appellant took her blood pressure; she could not recall that one way or the other.[26]Her evidence as to the date of the incident was one matter, argues Mr Martin Chamberlain who has represented the GMC before me, that the Panel was entitled to put into the balance. He also submits that they were entitled to have regard to the consistency of the account that she gave of the assault itself. There were, in effect, four occasions when she gave detailed accounts of what happened: in a letter to the GMC in June 1997 when asked to clarify the complaint, in the statement of 15 April 2003 (to which I referred in paragraph 18 above, prepared for an FHSA hearing), in a statement she prepared for the GMC proceedings themselves on 15 June 2006 and then in her evidence to the Panel. I need not set out those accounts in detail because I do not think that it is disputed that they were in all essential respects consistent with each other.[27]Any tribunal of fact would need to consider with care the issues going to the credibility and reliability of a complainant such as Ms P and, as I have already indicated, would wish to observe closely how such a complainant dealt with questioning (whether in the form of evidence-in-chief, cross-examination or questions from the Panel) on those issues. It is clear from the transcript that Mr Garnham, as one would expect, deployed skilfully and thoroughly the points to which I have referred (and indeed others) and the Panel would have had the opportunity of observing how Ms P dealt with them. The transcript also reveals that all three lay members (which included the Chairman) took advantage of the opportunity (not, incidentally, offered to a jury trying a criminal case) to ask Ms P questions at the conclusion of her questioning by counsel. The questions ranged over the delay in making the complaint (which she explained at least partly on the basis that she had tried to “block out” the incident), the circumstances in which she came to continue seeing the Appellant and the circumstances of the incident itself.[28]At the conclusion of all that and having had the benefit of detailed (and doubtless persuasive) submissions on both sides and the advice of the Legal Assessor, the Panel reached the conclusion that the allegation was proved. Although not strictly obliged to give reasons (since the issue was essentially one of credibility and reliability), the Panel gave the reason I have recorded in paragraph 16 above.[29]If, as Mr Garnham submits I should, I ask myself whether I am persuaded that this was a “wrong” decision, I have to say that I am wholly unpersuaded. The Panel gave reasons which, in the context of the way the evidence emerged before them, make good sense. The Panel plainly took “proper advantage of … having seen and heard the witnesses” (per Lord Thankerton) and decided that they were sure that what Ms P said about the central issue, namely, the assault, was true. That is enough for the allegation to have been established. I might add that they will also have seen her reaction when it was put to her that nothing improper took place at the examination. There were two particular passages which I will record: Mr Garnham: I want to make sure you understand that Dr Chyc does not dispute that he saw you on 30 April 1990. What I want to put to you is that beyond the ordinary medical examination, which was either in the Surgery or at your home, nothing untoward took place. Answer: I wish that was the case, but no, that is not the truth. Mr Garnham: …but what I have to suggest to you is that there was no assault, he did not grope you in the way you have described and he did not ask to kiss you. Answer: He most certainly did.” And then a little later at the conclusion of the cross-examination – Mr Garnham: Finally, Ms P, what I have to suggest to you is that the description of events you give for 30 April is the product, I would suggest to you, of the mental health difficulties you had subsequently and, although there was a consultation with Dr Chyc on that day, nothing improper occurred during it and what you say happened is a produce of the mental health difficulties you have had since. Answer: Not at all. It was Dr Chyc and I know what happened that day.”[30]For all these reasons, I do not think that the Panel’s decision was “wrong”. It was a decision to which they were plainly entitled to come on the evidence before them and they took full opportunity to consider that evidence carefully and conscientiously. The appeal against that finding is dismissed.

Mrs A

[31]I have summarised the nature of Mrs A’s allegation in paragraph 8(ii) above. A little more of the background is necessary.[32]The Appellant and Mrs A were work-friends as well as colleagues and it was common ground that they used to talk to each other and to support each other during difficult times. In particular, from time to time they held each other in a supportive manner (to “give each other a hug”) when one or other was feeling down. The allegation was that in 1998 Mrs A was going through matrimonial difficulties and that on one occasion the Appellant entered her office and found her upset. He held her hand, she stood up and the two embraced. During the embrace it was alleged that the Appellant rubbed his hands on Mrs A’s back in a circular motion and that he became increasingly aroused such that his penis became erect and was felt by Mrs A against her body. The Appellant had some recollection of the occasion in question. He agreed that it was likely that he had found Mrs A upset in her room, had held her hand and that they had embraced. He was unable to say whether or not he had rubbed her back as alleged, but did not positively deny it. He did deny, however, that during the course of that embrace he became aroused.[33]The Panel found the allegation proved and recorded their reasons as follows:
“Mrs A’s evidence was entirely convincing and cogent and its credibility supported by the doctor’s recognition that she appeared to be uncomfortable. The Panel accepted her evidence that the nature and proximity of this encounter differed from any previous embrace between the doctor and Mrs A.”
[34]The Grounds of Appeal in relation to this allegation are as follows: The finding of fact in respect of the complaint by Mrs A was unsupported by adequate reasons and/or was perverse. In particular, the Panel:(i) The Panel gave as the reason for accepting Mrs A’s evidence that it “was entirely convincing and cogent and its credibility is supported by the doctor’s recognition that she appeared to be uncomfortable. The Panel accepted her evidence that the nature and proximity of this encounter differed from any previous embrace between the doctor and Mrs A”, when there was no challenge to Mrs A’s truthfulness; it being contended that she was mistaken, not lying;(ii) They failed to explain why they rejected the evidence of Dr Chyc that Mrs A’s account may have been explained by mistake, given his habit on occasions of carrying a key fob in his pocket, the shape and size of which may have been mistaken for an erection;(iii) They failed to explain how they were able to be satisfied to the criminal standard that Mrs A had been assaulted by the Appellant pressing his erection against her when she agreed in cross-examination that “it is at least a possibility” that she was mistaken.[35]Mr Garnham argues that the reasoning set out in paragraph 33 above was seriously flawed because it addressed the wrong question. It was never suggested by the Appellant that Mrs A was other than a truthful witness. It was said that she was mistaken, not that she was lying. The Appellant agreed that it became apparent that Mrs A felt uncomfortable during the embrace; what mattered was whether her supposition about what she felt was accurate.[36]It is correct, as Mr Garnham says, that the Appellant’s case was not that Mrs A was untruthful, merely that she was mistaken. Mr Garnham prefaced his cross-examination in this way:
“I am acutely conscious of the fact that this is not easy for you, and I want to give you what reassurance I can. On instructions from Dr Chyc I am not going to be suggesting to you that you have come here to mislead the Tribunal; I am not going to be suggesting you have come here to deliberately lie. Nothing that you have said today am I going to challenge on the basis that you are telling untruths – right?”
[37]As will be apparent from paragraph 34(ii) above, the nature of the Appellant’s case was that whatever Mrs A felt against her it was not his erect penis. Whilst he was unable to advance a truly positive case, he suggested that he might have been carrying a particular type of rather bulky key fob in his pocket at the time which could have given her the wrong impression. Mr Garnham places emphasis on the fact that Mrs A apparently accepted that this might have been a possibility and submits that, if she was prepared to accept it, the Panel should also have been prepared to accept it and, accordingly, in effect declare themselves unsure that the allegation was proved.[38]The relevant exchange in cross-examination was as follows: Q: Dr Chyc will say that, when you embraced, he had no erection and he cannot remember whether he had something in his pocket that might have made you think it was an erection, but he often carried that at the time which is a remote control device for his burglar alarm at home. (Indicating) A: Yes. Q: Smaller than an erect penis, a different shape to an erect penis but around the right size give or take an inch or two. If he had that in his trouser pocket or in his jacket pocket, do you think it possible that you might have made a mistake as to what you felt? A: I can only say at the time … Q: You felt you knew? A: I felt I knew that it was an erect penis, having experienced that before. That is all I can say. Q: Is it at least conceivable that you might have made a mistake? A: I did not think so at the time. Q: But it is conceivable now that you might have made a mistake? A: I am just thinking, if it was in his pocket, it … (After a pause) If it was in his pocket, I would not have felt it against my body in the same way. Q: I do not suggest anything more because I cannot say that he even had it in his pocket, he is not certain, than it might have been possible that, in his pocket, you felt that against your hip, you being nine inches shorter than him and him possibly having that in his pocket. It is at least a possibility, is it not? A: It is at least a possibility, if you put it that way.[39]The weight to be attached to the concession of a witness that something is “possible” depends very much on the nature and strength of the concession, how it fits in with the rest of the evidence and its setting within the whole framework of the case.[40]Mr Chamberlain submits, in my view with force, that Mrs A’s acceptance of such a qualified suggestion was itself significantly qualified. But, he adds, this one answer had to be assessed in the overall context of what she said. In her evidence-in-chief she said that she was “certain in her own mind” that she had felt an erection and in cross-examination the following interchange also took place: Q: Do you think that you might have been mistaken about what it was that you felt? A: No. Q: Is it possible that what you felt was not a penis but something in Dr Chyc’s pocket? A: No. Q How would you be able to tell? A: I have to give the answer that I gave you last time, a woman knows” Furthermore, in re-examination, she insisted that she “would still say I felt an erection rather than that” (indicating the key fob).[41]Since there was no evidence that the Appellant actually had the key fob with him on the relevant occasion, and given the essential force of Mrs A’s evidence as summarised above, it is not difficult to see why the Panel should reject this “possible” explanation as so speculative as to warrant its dismissal from their consideration. In those circumstances, I would disagree with any suggestion that the Panel needed to give any detailed reasoning for having done so.[42]The other points made by Mr Garnham go simply to the merits of the issue that was joined in relation to this allegation to the extent that it could be joined given the Appellant’s stance on this aspect of the case. There were full submissions on both sides and, as with Ms P, the same members of the Panel took full advantage of the opportunity to question Mrs A about the circumstances.[43]Against that background, I can see no sustainable grounds for challenging this finding and the appeal against it is dismissed.

Interim Conclusion

[44]Mr Garnham conceded that should I reject the appeal concerning Ms P he would not be able successfully to submit that the finding of serious professional misconduct was inappropriate or that the penalty of erasure was disproportionate. Since I have rejected that part of the appeal, and indeed the appeal relating to Mrs A, it is plain that whatever view I form about the remaining grounds of appeal will not affect the overall outcome. However, the other grounds remain alive and I will, of course, consider them. I will, I hope, be forgiven in those circumstances for dealing with the issues more briefly than I might otherwise have done.

Failure to refer

[45]The Appellant faced charges of failure to refer to other clinicians in respect of 23 different patients, numbered as they were 5-27. He admitted the heads of charge concerning 12 of these patients, numbers 5, 7, 11, 13, 14, 15, 16, 17, 19, 20, 24 and 25. The Panel found him guilty of a failure to refer in 10 of the remaining 11 patients where the allegations had not been admitted, namely, patients numbered 8, 9, 10, 12, 18, 21, 22, 23, 26 and 27.[46]At the hearing before me, Mr Garnham maintained appeals on the Appellant’s behalf in relation to patients 8, 9, 18, 21, 23 and 26.[47]In relation to Patients 8, 21, 23 and 26, Mr Garnham’s essential point is that there was no evidence before the Panel that the Appellant had seen the relevant document seeking a referral of the particular patient and that there was no basis upon which the Panel could infer that he had done so. It would be convenient to consider these four patients first. Patient 8[48]This allegation arose out of a letter dated 7 March 2001 written to the Appellant by an in-house counsellor working at the surgery in Colchester. The letter indicated that “some time ago [she had sent him] a letter requesting a referral [for Patient 8] and his mother” to the Child and Family Consultation Service (CFCS), but that she had had a call from the mother saying she had not heard anything from the CFCS. There was a further letter (which, though not addressed to the Appellant, had plainly been read by him because the word “file” appears on it against which are his initials in his handwriting) on 27 April 2001 in which the counsellor referred to the fact that “earlier this year” she had written to the Appellant suggesting that “perhaps a referral to the [CFCS] may be useful.”[49]In cross-examination the Appellant accepted that he did not do a referral following the letter of 27 April, but thought that there must have been reasons for not doing so. The earlier letter does, of course, suggest that he did not do a referral at an earlier stage when it had been suggested.[50]Since the first letter to which I have referred was addressed personally to him and was, as I understand it, found in the surgery, and bearing in mind the contents of both that letter and the subsequent letter, it does seem to me that there was evidence upon which the Panel could conclude that no referral was made notwithstanding the fact that the Appellant knew that a request for such a referral had been made. On that basis, I reject the appeal in relation to this patient. Patient 21[51]The allegation was that the Appellant received a notification from Vision Express that Patient 21 required prompt referral to the hospital eye service and that he failed to process it. The notification was certainly addressed to the Appellant, but the evidence in terms of the response to it was that someone other than the Appellant had written “notes please” on the notification. Since the allegation of a failure to refer is made against the Appellant personally, rather than an allegation that he failed to ensure a system that resulted in a referral, I think that the evidence of a personal failure in this particular instance was sufficiently doubtful to mean that a finding of guilt should not have been entered.[52]The Panel may inadvertently have been influenced by the large number of other allegations that were either admitted, or which were justified on the evidence, but this was one allegation which, in my view, was not sustained on the evidence. I will allow the appeal against that finding. Patient 23[53]This allegation arises from a letter written to the Appellant on 10 October 2002 from a Consultant in the A & E Department of a nearby hospital asking that a patient of the Appellant be referred for a CT scan of his brain to exclude a further clot.[54]Whilst there is no direct evidence that the Appellant saw this letter, there was no evidence that anyone else did or may have taken responsibility for it (as there was with Patient 21). In those circumstances, it seems to me that the Panel was perfectly entitled to infer that he did see it, but took no action upon it. His expert witness, Dr Norfolk, took the view that this was a situation where the Appellant would have been justified in not referring the patient because of certain clinical signs. However, there is no evidence that that was what underlay the decision not to take any action on the letter and, as I have said, I can see why the Panel found this allegation proved. Accordingly, I dismiss the appeal in relation to it. Patient 26[55]This was a request by a Health Visitor dated 15 November 2002 addressed to the Appellant asking the Appellant to refer a particular child to the in-house counsellor because of suspected sexual abuse.[56]Although the Appellant said in evidence that there was “no evidence” that he had seen it, the Panel was entitled to infer that he did so and because there is no evidence than anyone else took responsibility for it. Accordingly, the appeal is dismissed in relation to that.[57]That deals with the first four patients in respect of whose cases appeals have been advanced. I must now deal with two other specific patients where the issues are slightly different, patients 9 and 18. Patient 9[58]The allegation here is that on 20 March 2001 a letter was sent from Great Ormond Street Hospital to the Appellant requesting that a particular 19 year old female patient who, and members of whose family, had been diagnosed as suffering from Marfan’s Syndrome be referred to a local cardiologist.[59]There is no issue that the Appellant received that letter because, in his handwriting, was a note saying “notes please”. There was, however, no evidence anywhere in the clinical records of a referral taking place after that letter, but there was a letter from the Consultant in October 2002 (i.e. over 18 months later) saying that the patient had “remained well over the last year with no cardiovascular problems.” The suggestion made on the Appellant’s behalf by Dr Norfolk was that this suggested that this was not the patient’s first attendance at the paediatric cardiology department and that she had, therefore, attended a previous appointment about one year earlier. The inference that is suggested from that is that there had been a proper and timely referral to the cardiologist.[60]Whilst it is just possible that that interpretation of the letter could have been accepted by the Panel, the fact of the matter was that there was no referral letter of the sort that one would normally anticipate and, as it seems to me, the Panel were perfectly entitled to draw the inference that the original request had not been acted upon and that the patient had found herself seeing the Consultant through some other route. For that reason, it seems to me that the finding was justified and I dismiss the appeal in relation to that. Patient 18[61]This allegation involved a patient who had seen the Appellant on 17 May 2002 and requested a sterilisation. The Appellant took some swabs and a blood count on that day and the inference would have been that he would have waited for the results before referring her for sterilisation. It appears that no reference for sterilisation was made until September 2002, some 4 months later, and that the patient then consulted the practice when she became pregnant later in the year.[62]It is not clear to me whether the Panel’s finding that the referral for sterilisation did not take place until the September was a finding critical of the Appellant. In fact he did make the referral and there is contemporaneous reference in the records suggesting that she might have been a suitable candidate for another form of contraceptive advice. Against that background, albeit not without some hesitation, I am not persuaded that the Panel should have been “sure” that there was effective guilt on his part in relation to this patient. Accordingly, I will allow the appeal in relation to this allegation.

Failures to file

[63]After the Appellant was suspended from practice in February 2003 I understand that in July 2003, some 4 months later, a representative of the Primary Care Trust collected some papers from the practice that appeared to be associated with him. There were found, it was said, in a red bin and a grey in-tray mixed with other papers that plainly belonged to him.[64]The papers related to a total of 69 patients and the view was formed that they should have been filed properly and not left in apparently loose form within the room that the Appellant used as a consulting room. It was felt, understandably, that at the very least this gave rise to confidentiality issues. As a result charges were laid relating to 66 documents thus found. Because of the way that charges are laid by the General Medical Council, this would have involved very many separate allegations. Leaving aside the merits or otherwise of the individual allegations, I cannot help but observe that there must be a more satisfactory and less cumbersome way of formulating a charge to the effect that a doctor is disorganised in the administration of his or her practice. Leaving aside any other comment, it must have taken a considerable length of time simply to read out these parts of the charges.[65]There was one “sweep up” charge at the end of the large number of individual charges to which I will refer below.[66]At all events, the Appellant admitted that he failed to file documents in relation to 16 patients and was found guilty of failing to file documents in relation to all the others (although a somewhat ambiguous finding was made in relation to one patient, patient 81, but since the Panel drew no adverse conclusion in relation to it I think I need say no more).[67]There are two principal points made on behalf of the Appellant about certain of the documents. In relation to some (the first category) it is said that there was no obligation to file them in the patient’s records (as was alleged), though it is conceded that there was an obligation to shred them because they were confidential. It is said that if the charge suggested a breach of an obligation to file (where no such obligation existed), then it was wrong to find him guilty of not protecting them appropriately until they were shredded. In relation to others (the second category) it is said that there is no evidence that the Appellant had seen or received them (and there was no evidence from which this could inferred) and, accordingly, it could not be said that there had been a personal obligation upon him to file them. It is also said that there was no satisfactory evidence of “continuity” between the leaving of the documents in situ by the Appellant on his ceasing practice and their subsequent collection by the PCT officer.[68]As to the matter of whether there was evidence that the Appellant saw the documents in the second category and whether there was general evidence of “continuity”, Mr Chamberlain submits, first, that since the documents were found in the Appellant’s consulting room, intermingled with his own private documents, an obvious inference open to the Panel was that he had seen those documents (or that, even if he had not seen them, they were his responsibility to file). Second, he says that the Appellant’s argument involves the suggestion that his colleagues, the replacement locums or the receptionists would have extracted a document from a patient’s records (where he had correctly filed it), or would have taken a document which he had never seen, and then would have left it within or on the piles of documents in his room. He submits that this suggestion is far-fetched and the Panel was entitled to reject it. I agree with both those submissions and I do not think those grounds of appeal are sustained.[69]I will return, however, to the first category. I can express myself quite shortly about this. In my judgment, where the individual allegation was that the particular document should have been filed as part of the patient’s records, but the evidence was simply that it was a document of a confidential character that did not require to be filed within the patient’s records but which should have been shredded, then it was not open to the Panel to be “sure” that there was an obligation to file the document in the patient’s records until it had been shredded. Any charge that was found proved when the evidence was simply to that effect should, in my judgment, be set aside and what has been called the “sweep up” charge (Number 239) should be amended accordingly.[70]My reason for reaching this conclusion is simply as follows. Whilst it is obviously desirable that the true nature of the findings of the Panel about a particular practitioner are reflected in the charges found proved, it is equally true that the practitioner should not be found guilty of charges that have been formulated in a particular and precise way when the evidence does not support the charge to the necessary standard of proof. There are, of course, potentially serious consequences arising from any finding that goes to a practitioner’s competence as a practitioner and, since the criminal standard of proof is required, so too is it necessary to adopt a relatively restrictive interpretation to the formulation of the charges. As I have said, in this case the Appellant was, in a number of cases, charged with a failure to file certain documents within the patient’s records and that is where the charge started and ended. If the evidence was simply that arrangements should have been made to maintain the confidential nature of the relevant documents until they were shredded then I do not think that any such charge as formulated would have been made out.[71]I will invite the assistance of counsel in identifying precisely the charges that fall to be set aside having regard to that general conclusion.[72]Otherwise I do not find any grounds for setting aside any of the other conclusions of the Panel and the appeals in relation to them will be dismissed.

Cited in 19 later judgments

and 10 more of the most senior