Siddiqui v Health Professions Council [2012] EWHC 2863 (Admin)

Case No CO/1285/2011

[2012] EWHC 2863 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN’S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Manchester Civil Justice Centre

1 Bridge Street West

Venue Manchester

Date Friday, 21 September 2012

M60 9DJ

Before

HIS HONOUR JUDGE PELLING QC

(SITTING AS A JUDGE OF THE HIGH COURT)

Between

SIDDIQUIAppellant

HEALTH PROFESSIONS COUNCILRespondent

(DAR Transcript of

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Mr Lawton (instructed by French & Co) appeared for Appellant.

Miss Butler-Cole (instructed by Bircham Dyson Bell) appeared for Respondent.

Judgment

His Honour Judge Pelling QC:

[1]This is the hearing of an appeal commenced as long ago as 11 February 2011 by which appeal the appellant seeks to challenge the conclusions of the Health Professions Council, the respondent to this appeal, that he should be struck off from the relevant Register of Health Professionals on the basis of findings made by the respondent in relation to three complaints identified in the paperwork generated by the respondent as FTP01941, FTP02066 and FTP01999.

[2]The panel hearing these complaints came to the conclusion that the majority of the allegations, including one which is the subject of challenge, were proved; that the result of the allegations being found proved was that they amounted to misconduct and/or demonstrated a lack of competence; that the matters collectively were to be regarded as extremely serious, to the extent that the appellant’s fitness to practise was to be regarded as impaired; and that in those circumstances, the only appropriate order was an order directing that the name of the appellant be struck from the Register. The appellant has a right of appeal as a matter of law, as will become apparent in a moment, which he has exercised.

[3]The relevant legal background is not the subject of dispute between the parties. It was acknowledged at the outset of the appeal by counsel appearing for the appellant, entirely correctly in my judgment, that the legal framework identified by counsel for the respondent at paragraph 9 and following of her written submissions is an accurate statement of the law. I therefore gratefully adopt that statement for the purposes of identifying the framework against which this appeal is to be resolved.

[4]The decision and order of the panel was made pursuant to Article 29 of the Health Professions Order 2001. Insofar as is material, that Article provides as follows at 29(3):

“If, having considered an allegation, the Health Committee or the Conduct and Competence Committee, as the case may be, concludes that it is well founded, it shall proceed in accordance with the remaining provisions of this article. (4) The Committee may— (a) refer the matter to Screeners for mediation or itself undertake mediation, or (b) decide that it is not appropriate to take any further action. (5) Where a case does not fall within paragraph (4), the Committee shall— (a) make an order directing the Registrar to strike the person concerned off the register (a “striking-off order”); (b) make an order directing the Registrar to suspend the registration of the person concerned for a specified period which shall not exceed one year (a “suspension order”); (c) make an order imposing conditions with which the person concerned must comply for a specified period which shall not exceed three years (a “conditions of practice order”); or (d) caution the person concerned and make an order directing the Registrar to annotate the register accordingly for a specified period which shall be not less than one year and not more than five years (a “caution order”). [...](9) The person concerned may appeal to the appropriate court against an order made under paragraph (5) and article 38 shall apply to the appeal. (10) Any such appeal must be brought before the end of the period of 28 days beginning with the date on which notice of the order or decision appealed against is served on the person concerned. (11) No order mentioned in paragraph (9) shall have effect— (a) before the expiry of the period within which an appeal against the order may be made; or (b) where an appeal against the order has been made, before the appeal is withdrawn or otherwise finally disposed of.”

In relation to appeals, Article 38 of the 2001 order provides that the Council will be the respondent, as is the case here, and then at (3) that he court’s powers are set out as being that:

“(3) The Court [may] (a) dismiss the appeal; (b) allow the appeal and quash the decision appealed against; (c) substitute for the decision appealed against any other decision the Practice Committee concerned or the Council, as the case may be, could have made; or (d) remit the case to the Practice Committee concerned or Council, as the case may be, to be disposed of in accordance with the directions of the court or sheriff, and may make such order as to costs (or, in Scotland, expenses) as it, or he, as the case may be, thinks fit.”

[5]The principles that apply to determination of appeals of this sort have been the subject of a number of decisions, and because the process is closely analogous to that which applies in relation to appeals by medical practitioners against decisions of the GMC, the authorities in relation to that process are relevant. However, both parties are agreed that the summary of Lindblom J in R (James Rice) v The Health Professionals Council [2011] EWHC1649 is an accurate and comprehensive statement of the relevant principles. Those principles in summary are set out at paragraphs 11 to 17 of Lindblom J’s judgment. He notes that the appeal is subject to the provisions of CPR Part 52, and therefore that an appeal will be allowed where the decision is either wrong or unjust because of serious procedural or other irregularities.

[6]At the outset of his submissions, counsel for the appellant made it clear that this appeal was being advanced solely on the basis that the decision in relation to one of the complaints before the panel was wrong because of an erroneous assessment of the credibility of the evidence placed before the panel by the respondent as justifying the finding that was in fact made. In relation to the approach to be adopted in relation to such appeals, Lindblom J adopted the analysis of Langstaff J in Bhatt v GMC

[2011] EWHC 783 (Admin)

“9. I accept and adopt the approach outlined in these authorities, in particular that although the court will correct errors of fact or approach: i) it will give appropriate weight to the fact that the Panel is a specialist tribunal, whose understanding of what the medical profession expects of its members in matters of medical practice deserves respect; ii) that the tribunal has had the advantage of hearing the evidence from live witnesses; iii) the court should accordingly be slow to interfere with the decisions on matters of fact taken by the first instance body; iv) findings of primary fact, particularly if founded upon an assessment of the credibility of witnesses, are close to being unassailable, and must be shown with reasonable certainty to be wrong if they are to be departed from; v) but that where what is concerned is a matter of judgement and evaluation of evidence which relates to police practice, or other areas outside the immediate focus of interest and professional experience of the FTPP, the court will moderate the degree of deference it will be prepared to accord, and will be more willing to conclude that an error has, or may have been, made, such that a conclusion to which the Panel has come is or may be ‘wrong’ or procedurally unfair.”

My attention was not drawn to any other authority from which it was suggested guidance relevant to the determination of this appeal could be obtained, and therefore I am content to adopt that analysis as a correct summary of the approach that ought to be adopted.

[7]The other point that I should make so far as legal background is concerned is this. There was some debate in the grounds of appeal, or at any rate the skeleton filed in support of the grounds of appeal, as to the correct formulation of the standard of proof that had to be satisfied by the respondent in advancing its case before the panel. It was accepted, however, by counsel for the appellant at the outset of this hearing that the correct statement of principle was that to be found in the opinions of the Appellate Committee of the House of Lords in Re B (Children) (FC)

[2008] UKHL 35

. In that case, Lord Hoffmann referred to the analysis of Lord Nicholls in Re H (Minors)(Sexual Abuse: Standard of Proof)

[1996] AC 563

, and in particular to the well-known formulation that:

“The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. [...] Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established.”

Lord Hoffmann then noted the development of what was ultimately held to be a heretical analysis in subsequent cases referring to a heightened civil standard. He then said this at paragraph 13:

“My Lords, I would invite your Lordships fully to approve these observations. I think that the time has come to say, once and for all, that there is only one civil standard of proof and that is proof that the fact in issue more probably occurred than not.”

The observations to which Lord Hoffmann was referring was an observation of Dame Elizabeth Butler-Sloss P in Re U (A Child) (Department for Education and Skills intervening)

[2005] Fam 134

, in which she said that the standard of proof to be applied in Children Act 1989 cases was the balance of probabilities. This led counsel for the claimant to accept, rightly in my view, that there was no criticism that could be advanced against the panel’s approach to questions concerning the standard of proof that had been adopted by them in considering the allegations that were made.

[8]That being the legal background, I now turn to the factual background. This I can conveniently take from the decision as recorded in the document that starts at the bundle at page 18. That document rehearses the allegations as being a series of particulars that appear on pages 23 through to 27. As I have already said, there were three complaints. There is, as counsel for the claimant made clear at the outset of this appeal, no challenge to the findings that were made in relation to complaint FTP01941, or in relation to the findings that were made in complaint FTP01999. It is not necessary that I rehearse in any detail the allegations that were made, beyond saying, as was accepted on behalf of the claimant in the course of counsel’s submissions, that the findings made rehearse a number of serious allegations of incompetence and malpractice, which was of extreme concern, having been proved as a fact.

[9]The only point that I need make in relation to these allegations that I am now considering is to point out that one allegation was an allegation of dishonesty in relation to working for an employer other than the claimant’s full-time employer at a time when the appellant was being paid for sickness absence. That allegation was not found proved, and that is relied upon by the appellant as being relevant to the issue of credibility of his evidence in relation to the allegations which are challenged and to which I now turn.

[10]Complaint FTP02066 rehearsed a series of particular allegations, the gravamen of which was that the appellant carried out an examination on a patient, identified for these purposes as KD, on 27 June 2006, on his own authorisation, without clinical justification, without a chaperone, and in doing so was sexually motivated to carry out that procedure. The relevant allegations were to the following effect:

“1. On dates between 1 June 2006 and 30 June 2006 you contacted a client Patient A whom you had scanned at the request of a GP and 2. In an email dated 8 June you persuaded Patient A a. that an intimate internal examination was clinically indicated which was incorrect and/or b. advised her how to encourage her own GP to request an appointment with you for an intimate internal scan, and/or 3. Between 8 June and 21 June 2006 you approached the client’s GP to request that an appointment should be made, so keeping any further GP’s referral inappropriately under your control and/or 4. In an email dated 21 June 2006 you offered Patient A a choice of appointment dates which you had selected so patient A had to be scanned by you and/or 5. On 27 June 2006 you performed an intimate procedure on Patient A a. on your own authorisation b. without clinical justification c. without chaperone or other safeguard to Patient A’s privacy and dignity. 6. In emails you sent to Patient A between 8 June and 27 June you used inappropriate language. 7. The matters set out in 1, and/or 2a, 2b, 3, 4, 5a, 5b, 5c and/or 6, were sexually motivated, and thereby constitute misconduct 8 By reason of that misconduct your fitness to practise is impaired.”

I should say, so as to avoid any misunderstandings, that allegation 3 was found not be proved, but that the remaining allegations were found proved.

[11]The conclusions which were reached by the panel were to the following effect:

“Particular 1. This is admitted by [the appellant] and is confirmed by the presentation of the email correspondence between him and patient KD. The Panel therefore find this particular proved. Particular 2. The Panel heard evidence from KD. They recognised that she had not reported the matters complained of to her GP until some three years after the event but noted that she had told her best friend at the time of the events and considered that her evidence was reliable. The Panel found her to be a credible witness. They recognised her distress in giving evidence of such a personal nature. [The appellant] sought to dismiss KD’s evidence as being both untrue and financially motivated. The Panel did not accept this view. [The appellant’s] email dated 08-06-2006 describes explicitly what KD should tell her GP in order for him to make an urgent referral and to mark it specifically for the attention of Mo Siddiqui. [The appellant] describes the intimate internal scan he proposes to undertake, although his ultrasound scan report dated 20-02-2006 does not indicate the need for a transvaginal scan. Had there been such a need the transvaginal scan should have been completed in line with the gynaecological scanning protocol dated February 2006. In his oral evidence [the appellant] suggested that there was a need to investigate the superficial lump on KD’s labia for any sinister pathology, which was why he initiated contact with KD. The Panel finds that if such an investigation had been necessary, it should have been arranged expeditiously through the appropriate channels and noted in his original report. No such mention was made. In any event the transvaginal scan may not have been the most appropriate clinical investigation. The appropriate clinical investigation would have been decided by a specialist medical team to whom the patient should have been referred by recipients of his report. The Panel therefore finds particulars 2a and 2b proved.”

Particular 3, as I have already mentioned, was found not proved because no evidence was offered in relation to it. Then in relation to particular 4, the panel concluded that that was to be found proved, because the appellant:

“... did not dispute that he suggested in his email at 13.31 on 21-06-2006 that either a Tuesday or a Thursday appointment would suit him. He was asked in cross-examination whether these arrangements would ensure that he did the scan and not a colleague and replied ‘yes absolutely’. The Panel therefore finds this Particular proved.”

Particular 5a was found proved, because the appellant admitted he performed an intimate procedure on his own authorisation. Particular 5(b) was found proved, because there was no documented clinical justification for the procedure. Then in relation to particular 5c the panel concluded in these terms:

“[The appellant] disputes that there was no chaperone present. The person TM who usually chaperoned [the appellant] could not confirm that she was definitely present during the examination, although she states in her various letters of support of [the appellant] that she does recall the patient KD. The Panel preferred the evidence of KD that no chaperone was present. Therefore on the balance of probabilities the Panel considers it more likely than not that no chaperone was present and finds Particular 5c proved.”

In relation to particular 6, and concerning the language used in the emails, the panel found this allegation proved because the appellant:

“... admitted that there was inappropriate language in the parts of some emails where he did not dispute authorship. The Panel is aware that patient KD produced the emails dated 2006 to her new GP in 2009. He initiated contact with the Trust forwarding a copy of the email correspondence held by KD, as evidence of his concerns. The Panel note that CD did not commence his post with the Trust until August 2007 and would not therefore be in a position to alter the contents of the email. In any event had any tampering occurred this would have been evidence from there being two different versions of the emails. The Panel rejects [the appellant’s] suggestions that the emails had been tampered with. In any event any written correspondence with a patient should be generated by the Trust’s clerical staff. It was inappropriate and unprofessional to use email to make direct contact with a patient. In addition this was contrary to Trust policy...”

In relation to particular 7, the panel concluded that there was no clinical justification for the appellant to directly contact KD or offer her the transvaginal scan that was ultimately carried out, and in the absence of clinical justification, the panel found that the appellant’s actions were sexually motivated, and thereby constituted misconduct. The result of this was that under the heading, “Decision on Misconduct and/or Lack of Competence”, the panel reiterated in relation to the allegation I am now considering that it had been proved, and that the appellant’s actions were sexually motivated, and therefore constituted misconduct. Under the heading, “Decision on Impairment” it expressed the view that:

“The matters are extremely serious, both as to lack of competence and misconduct. There is no evidence that any of the matters have been remedied therefore the Panel find that the Registrant’s current fitness to practise is impaired.”

[12]In relation to sanction, there was a detailed consideration of the facts found proved against, amongst other things, the Standards of Proficiency for Radiographers of 2007, and the Standards of Conduct, Performance and Ethics, also of 2007, and the conclusion was reached that there had been a comprehensive breach in relation to the various allegations that were considered, including the one that is now challenged, but not limited to it, and then said specifically in relation to the matters found proved this:

“The panel considers the matters found are serious and include a finding that the registrant was sexually motivated in his actions in relation to a patient. The Panel has already found that the registrant has shown insight into his actions. He tried to blame other colleagues and said the patients were either lying because they were financially motivated, or they had been set up by colleagues. The Panel find that to take no further action or mediation would not be appropriate in this case. The Panel then considered the remaining available actions in ascending order of gravity. They considered there were no conditions that could address the wide-ranging concerns or be proportionate to the gravity of the matters found proved.”

They then concluded that in those circumstances erasure was the only appropriate way to proceed.

[13]The appeal is advanced on behalf of the appellant on a single ground; that is to say that for the reasons which I will turn to in a moment, I should conclude, adopting the language of Langstaff J in Bhatt v GMC, that the primary findings of fact made by the panel by reference to the evidence of KD where it was preferred over that of the appellant, can be shown with reasonable certainty to be wrong, and that therefore I ought to reverse the decision of the respondent’s panel in relation to the sexual misconduct allegation.

[14]The evidence that was before the panel consisted of the written statement and oral evidence of the appellant; the written evidence and oral evidence of KD; and the notes prepared by the appellant at the time of the two examinations that took place, and in respect of which complaint was made, as well as the various emails to which reference has been made. In view of the fact that the view formed by the panel of the evidence of KD is challenged, it is necessary that I refer to a degree to the material evidence that was before the panel. The witness statement of KD starts in the bundle at page 55. It is relevant to note that in paragraph 5 of that statement, she refers to a cervical smear carried out at the direction of her then GP which was reported to her as being abnormal and was coupled with a recommendation that she undergo an abdominal ultrasound examination. Materially, she states in paragraph 5 of her statement:

“I was still suffering from pain and discomfort and I was keen to get my health problems resolved. I understood I was being referred for an external examination, and did not have concerns about what that examination involved.”

She then refers to the fact that on 20 February 2006, she went to the hospital at which the appellant was then employed to undergo an abdominal ultrasound examination. She refers to meeting the appellant for the first time, and she asserts that she gained the impression that he was a doctor rather a radiographer. She describes him as being chatty and friendly towards her, that he asked a few questions at the outset, and asked in particular why her partner had not accompanied her to the hospital. KD then says this:

“I explained to him that ‘she’ was not available. It would have been obvious to him by my reply that I was in a same-sex relationship. He seemed surprised by my reply and I recall that he said something along the lines of ‘you don’t look like a lesbian’. He also asked me whether I had ‘ever been with men’. This is something that had been said to me on previous occasions so I was not entirely surprised by his comment. However, in hindsight I think it was not appropriate for someone in [the appellant’s] position to make a comment about my appearance or my sexuality.”

There is then reference some ultimately incorrect advice given by the appellant, and at paragraph 10 KD notes that no chaperone was present during this examination, nor was one offered. She then said at paragraph 11 of her statement:

“Once this examination was finished he advised that he would need to have a closer look with a camera. It was at this point that he asked for my telephone number. I declined to give it to him. He then asked for my email address. I gave him my work email address as I thought that if he emailed me at work then I could then forward his emails directly to my employer in order to arrange time off for my appointments.”

At paragraph 12, KD says she left with the impression that there would a report in the ordinary course to her then GP, and that matters would proceed from there. She then refers at paragraph 13 to a string of emails that she received from the appellant, starting with one that was sent on 8 June 2006. The effect of this email traffic was a suggestion by the appellant to KD that he had been thinking about how she could be seen sooner than September, and suggested a course of action that was designed to ensure that occurred. It involved requesting KD to return to her GP and inform him of matters that, on the face of it, were untrue. Paragraph 13 refers to the fact that the appellant had said in the email concerned that KD should advise the GP to mark the card “urgent” and for the attention of “Mo”, which was the way by which the appellant referred to himself in the relevant emails. As noted by KD, the appellant concluded that email by stating:

“Why am I doing this for a complete stranger, well, I am a softy and your plight made me do something about it. What do you think?”

What do you think?”

[15]There is then a reference to the various further emails, which I need not go into at this stage. KD says at paragraph 15 of her statement that on 15 June 2006 she returned to her GP, did what the appellant had told her to do and arranged in this way for a further appointment. At paragraph 16 she refers to further email traffic to do with the further appointment, and likewise at paragraph 17 to further emails, the substance of which I will refer to in a moment. She then says at paragraph 18 that on 27 June she attended the relevant hospital, and there met the appellant. KD then says this:

“He [the appellant] took me to a seat which was near the bottom of a stairwell and told me to wait whilst he made arrangements to ‘slot me in’. I waited as I had been asked to. I did not have to register with the administrative staff as I had done on the previous occasion. 19. After a short wait [the appellant] returned and walked me into the examination room. He asked me to lift my skirt up and remove my underwear. I covered myself with the disposable blue paper. He then stated he was leaving the room to get a female chaperone. Quite shortly afterwards he returned to say there was no one available. He then stated to me that I wouldn’t mind as I should trust him. I was keen to have my health problems resolved so I reluctantly agreed to go ahead without a chaperone. However, I was feeling really nervous and a little bit pressured to go ahead with the examination. I remember thinking to myself that given that [the appellant] was a doctor then I should be able to trust him. 20. On the beginning of the examination I felt his fingers touch inside me and he said ‘you won’t be needing any lubrication will you?” and laughed. I felt really embarrassed at this point. He then continued with the internal examination. He made a comment that he would need to have a thorough look around to make sure he could see everything. It felt like it was taking a very long time. I just wanted it to end. He also made a comment that I was one of the most beautiful women he had ever seen. That comment made me feel uncomfortable.”

There was then an email that was sent on 27 June in which, as KD put it at paragraph 22 of her statement, “A number of highly inappropriate comments about my appearance and sexuality” were made. There was an invitation from the appellant to meet KD in a social setting. She then says this:

“After reading this email I felt extremely uncomfortable. It seemed to me that he had been getting sexual gratification out of giving me an internal examination. It made me feel sick to know that his motives during the examination were wholly unprofessional.”

[16]In relation to a point made in support of this appeal, namely the familiarity displayed by KD in her emails to the appellant, she said this at paragraph 24 of her statement:

“I have been asked why in my emails to [the appellant] I used the word ‘hun’, and finished off my emails with an ‘x’. I did this merely out of habit rather than any intention to be affectionate towards [the appellant]. In 2006 I would regularly send emails to my work colleagues using these same expressions. I did not think anything of it. However, I did think it was strange that [the appellant] used these expressions in his emails. I thought it was not a very ‘cool’ thing for a doctor to do.”

[17]She then explains how matters came to light in February 2009 following an appointment with a new GP, a Dr Tomlinson. The relevant emails appear starting at page 73 in the bundle, and working back through to page 64. The emails do not add greatly to what I have already said concerning the allegations that I have been made. It is worth noting, however, the terms of the email of 27 June 2006, which KD made express reference to. It was in the following terms:

“Hi hun. You know I’d completely forgot how incredibly beautiful you really are!!!!!!!! Those boots suit you to a tee!! Really [K] you look stunning. And now yes I have to utter a cliché why are you with a female and not a male? But actually that’s good because it would be so painful for me to think if only it could have been me who won her heart and not him ect. You know hun, I would be so honoured if you would class me as your friend, no ordinary friend, but one whome you could trust with your life. I could never touch you without your explicit permission. Sadly most men would. But that’s where respect comes in. You asked me if you need another scan, well I could lie and say yes just so I can see you again but no hun there is no real need for it unless your right side of dicomfort contiues, in which case it would be a good idea to check that right over and make sure that its settled down and not still inflammed. You take care of yourself now hun and please give me a quick text or an eamil or a phone call to let me know youre ok. But if [you] wish to have a drink or movies or fancy a wing walk or paraglide or go to Alton Towers or just a pleasant country walk or even a coffee in our crappy cafe, whatever hun it will always be a real pleasure ... Take care hun, lots of love.”

Take care hun, lots of love.”

[18]It is then necessary that I refer to the sum of the oral evidence. The evidence given by KD starts in the bundle at page 518. It is pertinent to note that, from line 31 on page 518 to line 16 on page 519, the presenting officer acting for the respondent, having called KD to give oral evidence, invited her to confirm that the witness statement from which I have quoted was her statement. She confirmed that it was. She was then invited to confirm that she had read the statement and satisfied herself that the contents were true, and that confirmation was provided. The presenting officer then asked:

“And do you stand by the matters that are set out in that statement today?”

To which KD replied, “Yes, I do”. This is important, because part of the evidence that was considered by the tribunal was the witness statement, and it is important to note therefore that that statement was approved by KD and was said to represent her evidence as being true to the best of her knowledge at the outset of the evidence she gave to the panel.

[19]KD was cross-examined, starting at page 526 in the bundle. The thrust of the cross-examination was to challenge various of the things that had been said by KD in the course of her evidence. There was some cross-examination, particularly at page 527, concerning the inappropriate language allegedly used at the initial examination, and the point which was being made, as is identified at lines 29 to 33, was that it was odd, if inappropriate remarks of the sort attributed to the appellant had been made, that no attempt was made to obtain an alternative source of medical advice or medical service, to which the response was at line 31:

“I do not know, because at the time I wasn’t -- I was that heads up with trying to get my problems solved. I guess I was more concerned with my ultrasound, getting the treatment, the diagnosis ...”

That is an answer that is entirely consistent with what KD had said in her witness statement on at least two occasions, as noted already in this judgment.

[18]In relation to the issue concerning why it was that KD had not complained earlier, she said in answer to a question that was asked of her in cross-examination:

“...naturally you are brought up with trusting someone who is a medical professional, or that is how my family brought me up anyway...”

There was then some discussion about when it was the complaint was first made about these events. This is dealt with in cross-examination at page 528 between lines 14 and lines 34, the general thrust of which was that a complaint had been made by KD to her best friend, concerning the matters of which complaint was made in the course of a phone call. A point made in the course of the appeal was that the person concerned was not in fact called to give evidence to corroborate what was being said. That is true, but the absence of corroboration does not lead to the conclusion that the evidence of KD should be rejected where it was not corroborated. Such an approach would only be appropriate if there was otherwise reason for suspecting the credibility of the evidence given by KD. The only point of substance that was made in relation to that was that there had been a delay of some years before a complaint was made, and that the complaints concerning the way in which the second of the two examinations were carried out first surfaced in a suitably explicit form in material filed in support of a claim for damages. Those explicit details were omitted when KD had been given an opportunity to explain what had happened. However, the witness explained in the course of her evidence that at that particular meeting where the discussions had taken place (and she was given an opportunity to explain what had happened) she was emotionally distraught and broke down. That it seems to me there is at least a credible explanation for why that issue did not surface, which the panel was entitled to accept.

[20]In relation to the question of money as being the motivating factor, that issue was the subject of some discussion in the course of cross-examination, but it is to be noted that the suggestion that the allegations were only made to support or bolster a damages claim was not specifically put to KD. The relevant evidence appears on page 541 in the bundle, between lines 4 and 14. Counsel asked:

“Mr Lawton: Well, in the whole of the notes of that meeting you didn’t mention him touching you and saying that you won’t need lubrication do you? The Witness: I did try to explain and then I got upset. Mr Lawton: Well, it’s not been noted, has it? It’s noted that you got upset. But you’d agree that there is no record of those incidents at all in these notes? And the first time...you appear to put this complaint is at the request of your solicitors in support of your claim for damages, is that right? Page 54. We see the statement there, when you describe what you say took place on the second visit. 10th of August 2009, so is the 10th of August 2009 the first time you actually write down and relate the specific claims about the 27th of June 2006 to anyone? The Witness: I wrote them down, yes.”

The Witness: I wrote them down, yes.”

[19]If it was to be suggested that KD had invented after the event the allegations that were being relied upon for the purpose of financial gain, then the time to put that allegation fair and square, in my judgment, was then, and it was not put. Thus the tribunal were placed in a difficult position for the purposes of assessing whether or not that was the motivation or not. However, it is clear that the panel considered that as a possibility, because it is expressly referred to in their findings and was the subject of closing submissions. They did not expressly reject the point on the basis of that it had not been put. Rather, they accepted that KD’s evidence was truthful evidence, and thus the point was one that the panel decided was to be resolved by accepting KD’s evidence rather than that of the appellant. In my judgment, that was a conclusion that the Panel was entitled to reach on the evidence before it. If I had had to reach a conclusion on the point afresh I would also have reached the same conclusion as the Panel for the additional reason that a conclusion that KD was motivated as alleged was not one that could safely be reached if the point could have been but was not put to the witness so as to give her an opportunity to respond to it.

[20]The point concerning the delay in reporting it was revisited by one of the members of the panel. In the transcript it is at page 547 within the bundle. Mr Norris was one of the members of the panel who asked whether she thought that the contents of the email of 27 June were “strange”. The witness agreed that that was so. Mr Norris then said:

“Did you think of whether or not you should report that to any other authorities at all? The Witness: At the time I thought it was strange but it was -- I mean I straight away showed my colleague. I was like completely flabbergasted by it, but when you’ve got other things going on in your life, it is not your first port of call, ‘I need to report that.’ Like I said, with hindsight, things would have been done differently and I’d have alerted, but it was just put it to one side, move on -- that’s how I felt at the time.”

Mr Norris then asked about how Angela, the friend, had reacted when told about this. The witness said:

“She was -- I actually forwarded it to her. She works at the same company, different section and she was disgusted with it. She may have mentioned, ‘Are you going to tell anyone? Are you going to raise it?’ and I was just like I wanted to forget about it. I just wanted to move on. Yes. As I say, I should have done at the time to be fair.”

Mr Norris then said this:

“I suppose what I am trying to say is it is difficult for me to understand why didn’t you? This looks like a threat to me. Why didn’t you say this man is threatening me and report it perhaps even to the police? The Witness: I wasn’t strong enough back then. I was at a point in my life when I just wanted to brush it away, brush it to the side, try to get on with my life. Like I say, with hindsight I should have done. And probably wouldn’t be here today if I’d have done it at the time. But I just -- it was more of a put it at the back of my mind, it didn’t happen, not there, it’s not part of my life. It’s only since my medical situation getting worse and ... I think it was only because of that, that you know, we’re here today that I got a bit stronger really, in a position in my life I think.”

As I have already said, the appellant’s counsel put the issue concerning financial motivation to the panel in the course of his closing submissions.

[21]In my judgment, and tested against the test identified by Langstaff J in Bhatt v GMC (that is to say, whether it can be said with reasonable certainty that the conclusion of the panel was wrong in relation to its assessment of the credibility of KD), I am unable to reach that conclusion. It is perfectly true to say that there were points that could be made, and indeed points that were made concerning the credibility of KD. However, it was primarily for the tribunal, who had the benefit of seeing the witness, to assess her credibility. I accept that in an appropriate case it would be open to the court to overturn such a finding, but the circumstances when that will be so inevitably are rare, as was noted by Langstaff J, and the material that is available to me in this case does not come near being that which would allow me to conclude that the panel’s assessment of the credibility of KD as a witness should be overturned.

[22]Furthermore, there was in my judgment more than an adequate amount of material to enable the panel to conclude that the claimant was sexually motivated. That that is so can be inferred from at least the following facts and matters. Firstly, the procedures that were adopted from beginning to end were wholly outwith conventional procedural activity. It is not conventional or appropriate for medical professionals to contact patients directly by email or any other mechanism. It was contrary to the policy of the relevant health authority for this to be done. It is not conventional practice to invite patients to tell untruths to their GP for the purpose of obtaining appointments. It is not conventional practice to engineer matters so as to ensure that a patient ostensibly needing a particular procedure should be referred to a particular radiographer over any other when there is no particular justification for so doing. The content of the emails, when read collectively, and particularly when the email of 27 June is considered, is very strongly consistent with that motivation being the relevant motivation.

[23]There is a further point, which it seems to me is a telling one in the circumstances, which is this. If the appellant had considered that it was appropriate to carry out the internal examination that ultimately was carried out, then there was no reason why that could not have been carried out at the time of the first appointment. There is no explanation as to why it was not. There is no explanation as to why the period of time that elapsed between the first and second appointment was allowed to elapse before contact was made, and the suggestion of a further examination identified. Furthermore it is, to put it no higher, extremely unusual that a radiographer should make decisions as to what examination should be carried out and should not be carried out without the input of a clinician. Whilst it is accepted, and I accept, that had a decision been taken by the appellant to undertake an internal examination at the time of the first consultation, that could not of itself be criticised; what is surprising, and open to criticism, is the notion that a radiographer should contact a patient and suggest further examinations, particularly ones of an intimate and intrusive nature, other than via the treating clinician. All of this was material from which it was open to the panel to infer a sexual motivation, and in my judgment it is simply impossible for me to reach a contrary conclusion on the material that is available.

[24]In those circumstances, and because this appeal was advanced exclusively by reference to the single point that the panel ought not to have concluded that the evidence of KD was to be accepted, I dismiss this appeal, having come to the conclusion that such a conclusion as is advocated for by the appellant is simply not open to me on this material. Miss Butler-Cole: My Lord, three matters. The first is just to put on the record that there was one point at which you referred to KD using her first name. Judge Pelling QC: If that is right, then that should be eliminated in any transcript. Miss Butler-Cole: I am grateful, my Lord. And the second is to seek an order that the appellant should pay the HPC’s costs of the appeal. Just to clarify, the appellant is now in receipt of legal aid, but was not for much of the proceedings. Judge Pelling QC: So you seek costs down to the date when legal aid was received, and thereafter costs but not to be enforced without further leave of the court? Miss Butler-Cole: Precisely. Judge Pelling QC: Yes. Do you oppose that? Mr Lawton: The appellant is in receipt of benefits, but I think in the terms that your Lordship has adumbrated, I do not think I can, if the order is -- Judge Pelling QC: No, it will be for the respondent to decide whether they want to proceed with an assessment for enforcement of costs, it is nothing I can deal with, but they are on the face of it entitled to their order. Mr Lawton: Yes. Judge Pelling QC: Very good. Right, there will be an order in those terms. Miss Butler-Cole: Just one final question, which is that in the hearing before Wyn Williams J in May, an order was made in favour of the HPC for their costs thrown away at that hearing. Judge Pelling QC: Yes. Miss Butler-Cole: The order was made that there be no detailed assessment of those costs until the final outcome of the proceedings. Judge Pelling QC: Yes. Miss Butler-Cole: But I am instructed to seek today an order for an interim payment in respect of costs. Judge Pelling QC: Have you a schedule? Miss Butler-Cole: My Lord, I have what the HPC prepared, which is not a schedule in the form that you normally see. Judge Pelling QC: Let us take it in stages. Has your opponent seen a copy? Miss Butler-Cole: He has not, no, I can give it to him. Judge Pelling QC: Normally these things are meant to be sent ahead of, I fully appreciate that your opponent was instructed late, but they are meant to be sent before the hearing to give an opportunity to consider. Miss Butler-Cole: My Lord, I am reminded by my instructing solicitor that Mr Siddiqui’s sister, who attended the last hearing with him, was given a copy of this at the time. Judge Pelling QC: Right. This is a record is it, of sums which had been charged by your instructing solicitors to the respondent? Miss Butler-Cole: Yes, my Lord. Just to clarify, it is roughly a figure of around £3,000 that represents the costs thrown away of the previous hearing. Judge Pelling QC: £3,000? Miss Butler-Cole: Yes. Judge Pelling QC: So what are you asking for now? Miss Butler-Cole: My suggestion was going to be that the interim payment should be 50 per cent, bearing in mind the possibility of reductions on detailed assessment and also -- Judge Pelling QC: Does this include any period when the appellant was legally aided? Miss Butler-Cole: Can I just check? Judge Pelling QC: Yes. (Pause) Miss Butler-Cole: My instructing solicitor confirms that these are just the payments up until the last hearing, and nothing since then. So they should not cross over -- Judge Pelling QC: So you are seeking an interim payment of about £10,000? Miss Butler-Cole: Yes, my Lord. Judge Pelling QC: You are, right. This is not a properly formulated schedule, is it? Miss Butler-Cole: No, it is not. Judge Pelling QC: The difficulty about that, as you will appreciate, is that what your instructing solicitors are paid by your client does not necessarily coincide with what, on detailed assessment, would be allowed on the standard basis. The point about preparing a costs schedule that adopts the usual form is to enable a court, even a court carrying out an interim payment assessment, to reach some form of judgment as to what might be allowed and what would not. I appreciate this is not a summary assessment issue, but there is no real guidance there at all, is there? Miss Butler-Cole: My Lord, I appreciate that. Judge Pelling QC: Particularly, although you identified fee owner grades and rates, there is no breakdown of how the charge has been arrived at. Miss Butler-Cole: No. I appreciate that, my Lord, and it may be that much of this is academic given that Mr Siddiqui’s financial position is somewhat precarious. The only thing I would say is that the one thing that one can ascertain from this is certainly that counsel’s fees have been incurred by the solicitors, and whether or not they would be upheld on detailed assessment, but there is certainly an amount which it must be right that Mr Siddiqui would have to pay, and I am in the court’s hands as to what amount will be. Judge Pelling QC: Very good, right. Any thoughts on this? Mr Lawton: Adopting my Lord’s observations about the schedule itself, again the reality is it is whether the respondent seeks to enforce any order my Lord makes on this occasion. Judge Pelling QC: But there is an application for an interim payment. I can well see that if you look at a schedule of this sort, quite considerable caution will need to be exercised, but there is going to be something payable, is there not, theoretically? Mr Lawton: Yes. Judge Pelling QC: Right. Any other submissions to make? Mr Lawton: No, my Lord. Judge Pelling QC: Very good. You can have an interim payment on account of £4,000. Miss Butler-Cole: Thank you, my Lord. Judge Pelling QC: Thank you. Any other business? No? Thank you very much.