Tutin, R (on the application of) v General Medical Council [2009] EWHC 553 (Admin)

Case No CO/7326/2008

[2009] EWHC 553 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Friday, 13th February 2009

Strand

London WC2A 2LL

B e f o r e:

MR JUSTICE McCOMBE

Between

THE QUEEN ON THE APPLICATION OF DR ALAN TUTINClaimant

Between

GENERAL MEDICAL COUNCILDefendant

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Ms Nicola Davies QC (instructed by Messrs Eastwoods Solicitors) appeared for Claimant

Mr Vivian Robinson QC and Mr Nick De Marco (instructed by Messrs Field Fisher Waterhouse) appeared for Defendant

J U D G M E N T

[1]MR JUSTICE McCOMBE: In this case, the claimant, a general medical practitioner, challenges the decision of a Fitness to Practise Panel of the General Medical Council of the 26th June of last year in rejecting, in certain respects, a submission made by his counsel in professional conduct proceedings that there was no case for him to answer.

[2]The claimant, as I say, is a general medical practitioner now aged about 60 years old who, it is alleged, committed certain acts of sexual impropriety amounting to professional misconduct towards a number of patients, up to 15 or 16 in number. The charges came before the Panel in May and June of last year for hearing and one particular patient, a complainant in the proceedings, was a Ms A, who made a number of complaints against the doctor. It is in relation to the Panel's treatment of those complaints and the submission of no case upon them that the application now arises.

[3]I should say, as far as the history of proceedings has gone, this matter is rather unusual. The relevant submission of no case was made at the end of the case for the Council and it was then appreciated that, owing to the somewhat lengthier proceedings than had been envisaged at the first stage, that the matter could not be concluded in the original time allotted. There would inevitably be some delay in returning the case back to the Panel for further hearing and I am told that, subject to the points that now arise, the matter is to come back before the Panel on Monday 2nd March for the resumed hearing.

[4]In the normal case, an objection such as the type that Ms Davies QC for the claimant now makes would be advanced on an appeal against any finding against the practitioner concerned. However, in view of the inevitability of a gap in the proceedings, I have been told by counsel that it was agreed that it was sensible and useful to make the application in the gap in the proceedings that I have described.

[5]The application that was made to the Panel under rule 17(2)(g) of the General Medical Council (Fitness to Practise) Rules Order of Council 2004. Rule 7(2) provides, in material respects:

"The order of proceedings at the hearing shall be as follows - ... (g) the practitioner may make submissions regarding whether sufficient evidence has been adduced to find the facts proved or to support a finding of impairment, and the FTP Panel shall consider and announce its decision as to whether any such submissions should be upheld."

It is accepted that the Panel was in this case obliged to apply the law as to burden and standard of proof that would be applicable in criminal cases and that the criminal law relating to "submissions of no case to answer" applied.

[6]On 26th June last year, the Panel gave its ruling, as I am told, after a lengthy retirement. That, in itself, is not surprising given the volume of material which the Panel had heard by way of oral evidence and the volume of matter that we have had to consider in respect of the various charges that had to be dealt with. Both in relation to the complaints made by Ms A and other complainants, the Panel decided in favour of the claimant on some of the charges but not on others. It did so giving brief reasons in each case. As I say, the present application relates solely to the complaints of Ms A.

[7]The submission made by Ms Davies was that the evidence of Ms A was so intrinsically unreliable, both in relation to the individual charges and when taken as a whole, that it was impossible for any fact-finding tribunal, properly directed, to find proved, to the requisite standard, the allegations made by her.

[8]At the beginning of their ruling, the Panel set out the law which they intended to apply and there is no dispute but that they correctly stated it. The relevant passage in the Panel's ruling reads as follows:

"The Panel noted the advice of the Legal Assessor. He referred the Panel to the cases of R v Galbraith 73 Cr.App.R 12, CA and to the case of R v Shippey [1988] Crim LR 767. You [referring to Ms Davies] and Mr Robinson both concurred that these two cases are the leading authorities which the Panel should consider in determining your application. The Panel determined that, in applying the principles set out in the cases of Galbraith and Shippey, it would consider each allegation still in dispute separately and with regard to any particular fact would apply the tests as set out below. • Was there any evidence before the Panel upon which it could find that matter proved. The Panel resolved that if there was no evidence of any particular fact, then it would allow your submission. • Was there some evidence, but of such an unsatisfactory character that the Panel, properly directed as to the burden and standard of proof, could not find the matter proved? If so, the Panel would allow your submission. • Was there some evidence, the relative strength or weakness of which was dependent upon the Panel's view of the reliability of a witness? In such circumstances the Panel determined that it would consider the issue of the strength or weakness of the evidence at this stage. Only where the Panel found that the witness' evidence is reliable in respect of the allegation in question has it concluded that that fact is capable of being proved to the criminal standard and only in such circumstances has the Panel allowed that allegation to remain to be considered at the conclusion of the evidence. This approach was the one that you [again referring to Ms Davies] advocated and has been adopted by the Panel."

In respect of four of the allegations made by Ms A, the Panel acceded to Ms Davies' submission of no case. It rejected her submission in relation to the rest.

[9]On the present application, Ms Davies submits that the Panel was wrong in law to reject her submission of no case in those respects. She accepts that Ms A gave some evidence in relation to each head of charge, which, if reliable, would be sufficient to found the charge made. She accepts further that Ms A was not a witness who was incapable of telling the truth. Her point is that she was a witness who was so clearly capable of distortion or embellishment of facts, in particular in relation to sexual matters, to the extent that her evidence as a whole was intrinsically unreliable. She points to five difficulties which she identifies in relation to the allegations that were made. The first two relate to heads of charge where the General Medical Council as prosecutor abandoned the allegations in the course of the hearing. Ms Davies argues that in those cases the Council in effect accepted Ms A's unreliability.

[10]Mr Robinson QC, with whom Mr De Marco appears for the GMC, says that this was not so. In the one case he was accepting that the Panel could not be sure that the events described were incapable of innocent explanation. In the other, the abandonment reflected, he said, the fact that the witness had not in fact come up to proof. It did not demonstrate, he submitted, any acceptance on the part of the Council that the evidence of A was intrinsically unreliable.

[11]The third point taken by Ms Davies is that the evidence revealed that, quite separately from the charges, Ms A, on the history of the case, had in many cases demonstrated an ability to report wide ranging sexual allegations against a number of people; she appeared to have her mind regularly on sexual matters and was fantasising in relation to these matters. She relied in particular on certain entries in the medical notes.

[12]Next, she submitted that Ms A's evidence as to the alleged conduct of the claimant in the background to these matters simply did not, to use a colloquialism, "stack up". She points out that no complaint was made until 2005. A had been a patient for more than 20 years and many of the allegations went back to the 1980s or before. Ms A said that the events occurred principally before her 30th birthday in 1986, yet she continued to consult the claimant as her GP up to 2004. Ms Davies further points out that Ms A continued to take her own children to receive medical attention from the claimant, even after, as she alleged, acts of misconduct had been committed towards her son (one of the abandoned allegations) and that she even took her daughter to see him when it was thought that she was a victim of sexual abuse by another person, notwithstanding that she now says that the claimant had abused A herself. Finally, Ms Davies submits that the inherent unlikelihood of some of the allegations indicates the nature and extent of the unreliability of Ms A as a witness.

[13]First, in relation to the head of charge which appeared as 3(a) on the charge sheet, Ms A was alleging that during a consultation with the claimant he spoke to her of sexual matters, asked her questions about her sex life and she said that in response she volunteered the information that she would from time to time walk about in her flat in a naked condition. According to Ms A, the claimant's reaction was spontaneously to ejaculate in his chair.

[14]Secondly, in relation to a series of home visits, Ms A gave evidence of three visits by the claimant. In the first she alleged that the claimant had attended her house when her daughter was ill and, while her daughter was downstairs in the sitting room, he pushed himself up against her in the hallway of the property.

[15]Thirdly, notwithstanding the allegation of what had happened, a matter of hours later that evening he returned entirely unannounced and examined the daughter and phoned an ambulance, leading to her being taken to hospital.

[16]Fourthly, in the head of charge at 3(h), it was alleged that the claimant had arrived at Ms A's house again unexpectedly. Both Ms A, her mother and daughter were present and, while they remained very close by in the kitchen, so close that A said she could hear her mother and daughter talking, the claimant had put a chair against the door of the sitting room and pushed his body against her. Ms A said she did not say or do anything and she had not apparently made any protest or scream as the complainant had rubbed himself against her.

[17]Fifthly, on another occasion, which was the subject of charge 3(i) on the sheet, after the two events that I have just referred to and some months after them, when the daughter had been admitted to hospital, the claimant just turned up again at the property. Ms A was surprised. Her reaction was to go upstairs, because she wanted to go to lavatory; the claimant must have followed behind her, although she was not aware of it, and then she had ended up on the floor with the claimant pushing himself up and down upon her.

[18]Ms Davies submits that the nature of that evidence is so inherently unlikely and of such a tenuous character and inconsistent in nature that the Panel was wrong to accept the witness Ms A as capable of belief on any of the charges.

[19]On a quite separate point, Ms Davies also points out that, in the course of dealing with one of the matters on which her submission of no case was rejected, the Panel adopted a formulation of its decision which appeared to suggest a misapplication of the law as it had correctly stated it at the beginning of its ruling.

(g) (ii) and the finding was in the following terms:

"Allegation 3(g)(ii) The Panel does not accede to your submission. The Panel received some evidence from Ms A on which this allegation could be found proved. Although her evidence was, at times, inconsistent, her recall in respect of this allegation, connected as it was to her daughter being unwell, had clarity. She remembered her daughter being prescribed antibiotics shortly before the visit in question and the Panel finds that her accuracy on that matter means that it would not be safe at this stage of the hearing to discount entirely her evidence of this allegation."

[20]In my judgment in this case, it is clear that the Panel did adopt the correct test as a whole at the beginning of its ruling, as is accepted by Ms Davies. Equally, in rejecting the submissions of no case in respect of the vast number of the charges, and including the one that I have just read, its formulation of its reasoning could not be faulted.

(f) , which was in the following terms:

"The Panel does not accede to your submission. The Panel received some evidence from Ms A on which this allegation could be found proved. She referred to details regarding [the claimant's] personal life which, on one view of her evidence, she may have obtained from [the claimant]."

[21]That pattern of ruling continued throughout the findings. It was repeated at the beginning of the finding where the criticism is levelled. In my judgment, Mr Robinson is right in his submission that the Panel was adopting throughout a proper approach to the burden of proof and that the criticised sentence is to be regarded properly as an unfortunate phrasing of that one particular finding. From the material as a whole, it appears to me that the Panel fully understood the test that was to be applied and proceeded so to apply it.

[22]With regard to the other allegations, it seems to me that in the area where the Panel acceded to the claimant's submissions, it did so on the basis of head 1 of Galbraith. Just as a reminder, that was in the following terms:

"(1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case..." [my emphasis] The Panel's language so indicates that that might have been its approach in this case. I quote the findings in relation to allegations 3a(ii) and (iii) and 3b: "

The Panel allows your submission. It received no evidence upon which it could safely find proved so that it was sure that during an occasion when Ms A consulted [the claimant] in respect of her asthma, he spoke of sex, asked her questions about her sex life and became sexually aroused." [my emphasis] Allegation 3b: "The Panel allows your submission. Although Ms A gave evidence that during consultations with [the claimant] it was 'any excuse to sort of take your bra off' her evidence both in chief and in cross examination was that this was in the context of consultations relating to asthma. The Panel received no evidence upon which it could be sure that Ms A's bra was regularly removed during consultations regardless or her presenting complaint." [my emphasis]

[23]In the other cases, as it appears to me, the Panel acted under the second head of Galbraith. In my judgment, it seems possible that in the light of Ms Davies' submission that the Panel may have been somewhat generous in dismissing the charges on the basis it did under the first head of Galbraith. That, of course, does not render deficient its findings in respect of the other matters. The question I have to decide in respect of those other matters was whether the Panel was wrong to reject Ms Davies' submission on the other points.

[24]I take full credence of the well-known passage from the brief report of the reasons given in the Criminal Law Review for Turner J's decision in Shippey. It is worth noticing the commentary to that case written by the late Professor JC Smith, which is in the following terms:

"It is quite clear that the case must not be withdrawn from the jury merely because the judge thinks that the principal prosecution witnesses are not telling the truth. That would be to usurp the function of the jury. It is arguably different, however, though the difference is one of degree, if the judge thinks that no reasonable jury could find that the prosecution witnesses are telling the truth. If that is truly the case, then there is no point in leaving the case to them, for (in the absence of damaging evidence appearing during the case for the defence) the jury, which we must assume to be a reasonable jury, would inevitably acquit."

Notwithstanding the passage (b) above in Galbraith, the judge did think it right to assess the credibility of the prosecution case as a whole. Taking the Crown's evidence 'at it highest' does not, apparently, mean, assuming that the evidence against the defendant is true. What it does mean is not very clear." It is important to note, as the (sadly) late lamented Professor says, that in cases such as that it is very much a matter of degree.

[25]What one can say is that in Shippey Turner J had heard all the evidence in this case and was well capable of formulating his own judgment of the prosecution as a whole. Here the Panel heard that evidence and heard the evidence as a whole. It clearly had in mind the necessity of assessing the reliability of the witness, which it did so individually in relation to each of the allegations. It seems to me that it cannot have failed to have in mind the submission made by Ms Davies that in doing so, it would have to bear in mind the intrinsic reliability of the witness as a whole. I was referred by Ms Davies to her submission in writing in the following terms:

"It is submitted in relation to Ms A that she is not a witness upon whom any Panel could safely rely in order to find the facts alleged proved to the necessary standard."

[26]It seems clear to me that the Panel must have taken the view that, whatever the strength of the argument submitted, they did not at that stage go to undermine entirely Ms A's credibility. It is clearly open to a tribunal of fact to decide in respect of any witness whether it can accept all of its evidence, none of it or only some of it. The Panel must have appreciated that in taking its decision as a matter of law. It clearly took the view that the reliability of Ms A was not undermined in sufficient extent for it to be unsafe to leave it for final consideration on the facts in respect of some of the charges and to allow the matter to be assessed at the end of the day.

[27]I think it is material in this case to note that this was a matter which was considered by an experienced Panel of the Council, which had been properly advised and which had a legally qualified chairman. The court has to be hesitant in such cases in holding that the Tribunal took a course that no reasonable Tribunal could properly take. The court will, of course, do so where appropriate. However, in this case, while I can see the force of the submissions that Ms Davies made to the Panel, those that she has made here and those that she will no doubt make again in her closing remarks to the Panel I am unable to find that these points demonstrate that the Panel was wrong in finding that there was a case to answer in respect of some of the allegations based on Ms A's evidence. It had to weigh Ms Davies' points against all the evidence that it heard. I am satisfied that no error of law has been demonstrated in the manner in which it did so.

[28]For those reasons, this application is refused.

[29]MR ROBINSON: My Lord, can I ask Mr De Marco to address you on the question of costs?

[30]MR JUSTICE McCOMBE: Yes, of course. Mr De Marco?

[31]MR DE MARCO: My Lord, we would ask for the usual order here, that the unsuccessful claimant pays the defendant's costs. The claimant has been unsuccessful on all the major points of review and the defendant has put its case quite clearly in the summary grounds of defence and so there is no reason in principle, we say, to vary from the normal order that the successful party gets its costs. My Lord, I am not sure if you have been handed the costs schedule.

[32]MR JUSTICE McCOMBE: Well, let us hear whether Ms Davies wants to say anything on the principle and then we will look at quantum.

[33]MS DAVIES: No.

[34]MR JUSTICE McCOMBE: Thank you. Well, you can have your costs and now we can look at points of quantification. You are asking for summary assessment?

[35]MS DAVIES: Yes, my Lord. Has a schedule been passed up to your Lordship?

MR JUSTICE McCOMBE: No. (handed)

[37]MR DE MARCO: My Lord, the total, which is at the end on the penultimate page, is just over £11,000. £11,800. I would just say this: that, for what has turned out to be a relatively substantial judicial review with leading and junior counsel, taking most of the day, including a skeleton argument and documents, that does not seem an unreasonable amount and I would comment, my Lord, that the claimant's schedule of costs, which I have seen, which one might expect to be slightly larger, given that the claimant is making the case, the claimant's estimate of costs was in the figure of £30,600 and, given that, I would be surprised if the claimant had many criticisms of this level of cost.

[38]MR JUSTICE McCOMBE: Right. Ms Davies, what do you say about that?

[39]MS DAVIES: My Lord, what I say is this: those who prepped me and have far more experience of these matters than myself cannot describe this as unreasonable. I cannot go beyond that, I have to say.

[40]MR JUSTICE McCOMBE: Well, thank you very much, Ms Davies. In the light of those submissions, I will assess the successful defendant's costs in the sum as claimed.

[41]MR DE MARCO: My Lord, I am very sorry. I just need to take instructions on one point, because I think I might have a slightly different estimate to -- I see. Yes, my Lord, I am sorry. I had slightly misread this costs schedule.

MR JUSTICE McCOMBE: I hope Ms Davies has not.

[43]MR DE MARCO: It is a small difference. It -- there are two totals. There is not a grand total on here. So the figure I gave you at the end is not the grand total. There is an earlier total on page 2.

MR JUSTICE McCOMBE: Yes, and then there is the --

[45]MR ROBINSON: 4,400.

[46]MR JUSTICE McCOMBE: And then the other total is 11,000. So your total comes to --

[47]MR ROBINSON: To about 15, 16, yes.

[48]MR JUSTICE McCOMBE: £16,000, and you tell me that the schedule on the other side was something around 30,000.

[49]MR DE MARCO: 30,500.

MR JUSTICE McCOMBE: Let us see what Ms Davies says, if that alters her submission.

[51]MS DAVIES: Can you just give me one moment?

MR JUSTICE McCOMBE: Yes, of course, Ms Davies. (pause)

[53]MS DAVIES: No, my Lord. My position is unchanged, my Lord.

[54]MR JUSTICE McCOMBE: Well, I will assess the costs as claimed. I must say -- perhaps I am out of date -- they seem very high. I will say no more than that.

[55]Thank you very much indeed for your submissions on both sides. It was a very helpful and succinct presentation of what was an interesting case. Thank you very much.