TZ v General Medical Council [2015] EWHC 1001 (Admin)

Case No CO/4490/2014

[2015] EWHC 1001 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 17/04/2015

Before

MR JUSTICE GILBART

Between

TZAppellant

GENERAL MEDICAL COUNCILRespondent

Christopher Geering (instructed through Direct Access) for Appellant

Ivan Hare (instructed by GMC Legal) for Respondent

Hearing Hearing dates: 17 March 2015

Judgment

MR JUSTICE GILBART :

[1]This is an appeal brought under section 40 of the Medical Act 1983 (“MA 1983”) against the decision of a Fitness to Practise Panel administered by the Medical Practitioners Tribunal Service (“MPTS”), part of the General Medical Council (“GMC”), whereby it held that the Appellant’s fitness to practise as a medical practitioner was impaired by reason of his misconduct. It directed that his name be erased from the Medical Register under section 35D of the Act.

[2]That decision was made by the Panel after a hearing which concluded on 28th August 2014 at the MPTS hearing centre in St James’s Building, Oxford Street, Manchester. The hearing had taken a total of 16 days sitting on 20-24 January, 12-14 March, 24-25 and 28 April, 24 and 26 June and 26-28 August 2014.

[3]The central issue in this appeal relates to the refusal of the Panel to consider an application that it should permit the adduction of evidence after it had adjourned to consider its factual findings on the issue of misconduct, had sent an embargoed draft of its findings to the parties, but had yet not handed down those findings. (1). Medical Act 1983 and Fitness to Practise Rules

[4]The statutory context for the powers of the Panel and of this court appear in Part V of the MA 1983, entitled “Fitness to Practise and Medical Ethics.” The Fitness to Practise Rules, which are made by the General Medical Council and then given force by an Order of the Privy Council, deal with the procedures to be followed.

[5]The following provisions of the MA 1983 are relevant: i) 35C Functions of the Investigation Committee “(1) This section applies where an allegation is made to the General Council against—(a) a fully registered person;

(b) ……………………………………………………

(c) …………………………………………………… that his fitness to practise is impaired. (2) A person’s fitness to practise shall be regarded as “impaired” for the purposes of this Act by reason only of— (a) misconduct…… (4) The Investigation Committee shall investigate the allegation and decide whether it should be considered by a Fitness to Practise Panel. (5) If the Investigation Committee decide that the allegation ought to be considered by a Fitness to Practise Panel— (a) they shall give a direction to that effect to the Registrar; (b) the Registrar shall refer the allegation to a Fitness to Practise Panel; and (c) the Registrar shall serve a notification of the Committee’s decision on the person who is the subject of the allegation and the person making the allegation (if any).” (a) a fully registered person; (b) …………………………………………………… (c) …………………………………………………… that his fitness to practise is impaired. (a) misconduct…… (a) they shall give a direction to that effect to the Registrar; (b) the Registrar shall refer the allegation to a Fitness to Practise Panel; and (c) the Registrar shall serve a notification of the Committee’s decision on the person who is the subject of the allegation and the person making the allegation (if any).” ii) Section 35D sets out the functions of a Fitness to Practise Panel “(1) Where an allegation against a person is referred under section 35C above to a Fitness to Practise Panel, subsections (2) and (3) below shall apply. (2) Where the Panel find that the person’s fitness to practise is impaired they may, if they think fit— (a) except in a health case, direct that the person’s name shall be erased from the register….” (a) except in a health case, direct that the person’s name shall be erased from the register….” iii) 35E Provisions supplementary to section 35D (1) Where, under section 35D above, a Fitness to Practise Panel— (a) give a direction that a person’s name shall be erased from the register…….. the Registrar shall forthwith serve on the person concerned notification of the direction or variation and of his right to appeal against it under section 40 below. iv) 40 Appeals (1) The following decisions are appealable decisions for the purposes of this section, that is to say— (a) a decision of a Fitness to Practise Panel under section 35D above giving a direction for erasure……….; (4) A person in respect of whom an appealable decision falling within subsection (1) has been taken may, before the end of the period of 28 days beginning with the date on which notification of the decision was served under section 35E(1) above, or section 41(10) or 45(7) below, appeal against the decision to the relevant court. (5) In subsection (4) above, “the relevant court”— (c) ………..means the High Court of Justice in England and Wales. (7) On an appeal under this section from a Fitness to Practise Panel, the court may— (a) dismiss the appeal; (b) allow the appeal and quash the direction or variation appealed against; (c) substitute for the direction or variation appealed against any other direction or variation which could have been given or made by a Fitness to Practise Panel; or

(d) remit the case to the Registrar for him to refer it to a Fitness to Practise Panel to dispose of the case in accordance with the directions of the court, and may make such order as to costs …….. as it thinks fit. (9) On an appeal under this section from a Fitness to Practise Panel, the General Council may appear as respondent; and for the purpose of enabling directions to be given as to the costs of any such appeal the Council shall be deemed to be a party thereto, whether they appear on the hearing of the appeal or not.”

[6]So far as the Fitness to Practise Rules are concerned, the version current at the relevant time was the Fitness to Practise Rules 2004 as amended in July 2013. The parts relevant to this claim read as follows:

“Case management 16. (1) The Registrar shall appoint one or more legally qualified Case Managers for the purposes of this rule. (2) Following the referral of a case to a FTP Panel for— (a) a hearing to consider an allegation in accordance with rule 17; (b) ………………………. (c) ……………………….. the Registrar may list the matter for a case review before a Case Manager. (5) The Case Manager shall act independently of the parties and may give directions to secure the just, expeditious and effective running of proceedings before the FTP Panel. (6) Directions issued by the Case Manager may include, but are not limited to, such of the following as he considers appropriate having regard to the nature of the allegation, any representations made by the parties and all other material factors— (a) that each party disclose to the other— (i) any documentary evidence in their possession or power relating to the allegation, (ii) details of the witnesses (including the practitioner) on whom they intend to rely and signed witness statements setting out the substance of their evidence……. (iii) a curriculum vitae and an expert report in respect of any expert on whom they intend to rely, and (iv) skeleton arguments; (h) a direction for an adjournment of the case review or an additional case review where the circumstances of the case require; and (i) time limits for compliance with any of the directions listed above. Procedure before a FTP Panel 17 (1) A FTP Panel shall consider any allegations referred to it in accordance with these Rules, and shall dispose of the case in accordance with sections 35D, 38 and 41A of the Act. (2) The order of proceedings at the hearing shall be as follows— (f) where facts remain in dispute, the Presenting Officer shall open the case for the General Council and may adduce evidence and call witnesses in support of it; (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; (h) the practitioner may open his case and may adduce evidence and call witnesses in support of it; (i) the FTP Panel shall consider and announce its findings of fact; (j) the FTP Panel shall receive further evidence and hear any further submissions from the parties as to whether, on the basis of any facts found proved, the practitioner’s fitness to practise is impaired; (k) the FTP Panel shall consider and announce its finding on the question of whether the fitness to practise of the practitioner is impaired, and shall give its reasons for that decision; (l) the FTP Panel may receive further evidence and hear any further submissions from the parties as to the appropriate sanction, if any, to be imposed or, where the practitioner’s fitness to practise is not found to be impaired, the question of whether a warning should be imposed; (m) ………………………………. (n) the FTP Panel shall consider and announce its decision as to the sanction or warning, if any, to be imposed or undertakings to be taken into account and shall give its reasons for that decision; (o) where the FTP Panel considers that an order for immediate suspension or immediate conditions should be imposed on the practitioner’s registration, it shall invite representations from the parties before considering and announcing whether it shall impose such order, together with its reasons for that decision; and (p) the FTP Panel shall deal with any interim order in place in respect of the practitioner. (9) At any stage before making its decision as to sanction or warning, the FTP Panel may adjourn for further information or reports to be obtained in order to assist it in exercising its functions. Evidence 34 (1) ………………the Committee or a Panel may admit any evidence they consider fair and relevant to the case before them, whether or not such evidence would be admissible in a court of law. (9) In relation to proceedings before the Committee or a FTP Panel, unless otherwise agreed between the parties or directed by a Case Manager, each party shall not less than 28 days before the date of a hearing— (a) provide to the other party a list of every document which he proposes to introduce as evidence; (b) provide to the other party a copy of every document listed in paragraph (a) which the other party has not previously received; and (c) require the other party to notify him, within 14 days of the list being provided to him, whether or not he requires any relevant person to attend and give oral evidence in relation to the subject matter or making of such document. Witnesses 35 (5) The Committee or Panel may, on the application of a party or of its own motion, require a witness to attend a hearing and the relevant party shall exercise its power to compel attendance under paragraph 2 of Schedule 4 to the Act accordingly. Attendance of the public 41 (1) Subject to paragraphs (2) to (6) below, hearings before the Committee and a FTP Panel shall be held in public. (2) The Committee or FTP Panel may determine that the public shall be excluded from the proceedings or any part of the proceedings, where they consider that the particular circumstances of the case outweigh the public interest in holding the hearing in public. (3) Subject to paragraphs (4) to (6), the Committee or a Panel shall sit in private, where they are considering— (a) whether to make or review an interim order; or (b) the physical or mental health of the practitioner. (4) Where it is considering an allegation, the FTP Panel may revoke an interim order in public. (5) A Panel shall, where it is considering matters under paragraph (3)(a), sit in public where the practitioner requests it to do so. (6) Subject to paragraph (5), the Committee or Panel may, where they are considering matters under paragraph (3)(a) or (b), hold a hearing in public where they consider that to do so would be appropriate, having regard to— (a) the interests of the maker of the allegation (if any); (b) the interests of any patient concerned; (c) whether a public hearing would adversely affect the health of the practitioner; and (d) all the circumstances, including the public interest. (7) The Committee or Panel may deliberate in camera, in the absence of the parties and of their representatives and of the public, at any time.”

[7]While I shall set out more of the detail of the cases for the GMC and the Appellant below, it is helpful to start with a short description of the allegations against the Appellant and the case for him in rebuttal. (2). The cases before the Panel

[8]The Appellant was working as a Locum Senior House Officer in the Emergency Department of a hospital in London on 6th February 2010. A female patient A, who was a young woman, attended the hospital complaining of abdominal pain. She was seen by the Appellant, who examined her. She alleged, but he denied, that he had examined her private parts digitally.

[9]It was alleged that the Appellant i) had asked A for her telephone number ii) asked her irrelevant personal questions iii) suggested that she attend upon him at a private clinic in Putney, without charge; iv) asked her to undress, and both failed to provide her privacy, and watched her undress; v) performed a vaginal examination which was not clinically indicated; vi) in relation to that examination; a) failed to offer A a chaperone; b) pulled down her knickers; c) touched her vagina with his ungloved hand; d) while doing so, looked at her face, smirked at her, laughed at her, and made an improper remark about her having similar contact from her boyfriend; e) made inappropriate remarks on the conclusion of the examination; f) did not record the examination in A’s medical notes; vii) told A that she had a “ nice body” or words to that effect; viii) tried to make arrangements to meet her socially; ix) obtained the telephone number for a non-clinical purpose of another female patient while examining her; x) entered A’s telephone number, and that of the other female patient, on to his personal mobile telephone; xi) was sexually motivated in his conduct.

[10]The Appellant’s case was that he had examined A in a quite usual way. He said that while it was correct that he examined her on her own, he never performed a vaginal examination, either externally or internally. He said that he had taken her telephone number, but only because it was not in the medical notes. He took a detailed medical history. The only mention of the clinic in Putney was so that he could inform her of any vacancies at that clinic. He denied any impropriety.

[11]It is relevant to note that at the time of the patient’s examination and consultation with the Appellant, a Health Care Assistant (“HCA”) was working in the relevant department. As will be apparent from what follows, her evidence was potentially very material.

[12]The Appellant had faced a criminal trial over the incident. In December 2011 he was tried before HH Judge Worsley and a jury at Blackfriars Crown Court, and was acquitted. At that trial, various witnesses had been called. The Defence called the HCA, who had previously given a witness statement to the Police during their investigation. The prosecution also called a man (whom I shall refer to as B) who was the boyfriend at the time of the patient. He too had given a statement to the Police.

[13]It is necessary to understand the factual cases before the Panel to set the context for the resolution of the issues before this Court. I have used the summaries of evidence contained in the Panel’s decision letter so far as it related to the facts. (3). Patient A’s Account

[14]On Saturday 6 February 2010 Patient A, who was a student, found that she was suffering from considerable worsening abdominal pains. She attended the Emergency Department at the hospital. She arrived at the hospital at about 4:45pm and was seen by a male triage nurse, who asked her about her symptoms, any allergies, when her last period had been, and how many sexual partners she had. He then asked her to give a urine sample, which she did. About an hour later the patient was seen by the Appellant.

[15]The patient said that the Appellant asked her for her telephone number as it was not in her medical notes. He wrote her number on one of the stickers that came with the notes and then kept that sticker on his person. He took a medical history which included enquiries about where she worked, whether she had a sexual partner and the nature of her relationship with her partner. He then asked her to change and put on an “overall” but he did not leave the room. She removed her hoody and jumper, but left on a “body suit.” She removed her jeans only after she had put on the “overalls”. The Appellant had watched her change and nobody else was in the room. The Appellant told her to lie on the bed and began to feel her stomach. During that stage of the examination he was talking about the fact that her GP’s practice was in Wimbledon. The Appellant then mentioned that he had a private practice at a clinic in Putney and invited her to visit him there at no cost. The Appellant asked her about her (vaginal) discharge and despite her saying that she thought it was fine, said that he needed to check it. She had already pulled her knickers down a little, but the Appellant then pulled them down further and then put his fingers “around that area.” At that point the Appellant indicated that he needed to use gloves. After putting them on, the Appellant inserted his finger into her vagina. It was uncomfortable, and while the Appellant’s finger was still inserted in her vagina, he laughed or smirked and said something to the effect that “you shouldn’t feel like that because it wasn’t like you had never done this before.” She gave evidence that the Appellant then checked her back and heart, and during the examination said that he made complimentary remarks about her body. The patient said that he then told her to get dressed and while she did so, attempted to arrange to meet her sometime later. She reminded the Appellant about the urine sample and he called a nurse who took the sample to be checked. While the nurse was away the Appellant discussed her diagnosis, the use of painkillers and her diet in general. The Appellant also tried to arrange to take her for an Indian meal. The Appellant offered to telephone her to see how she was getting on and to arrange a meeting. When the nurse returned with the urine sample results, the patient said that the Appellant told her that everything was clear and the patient then said that she left.

[16]The patient said that after she left the hospital she called her boyfriend and told him most, but not all, of what had happened. Then her mother telephoned her in connection with a parking ticket she had incurred when using her mother’s car. She told her mother what had happened at the hospital. Her mother became angry about the absence of any chaperone and insisted that the police were called. The patient had met with the police at her mother’s house that evening. Five days later the patient attended at the police station where her video interview took place.

[17]The Panel noted that the patient’s evidence was wrong regarding several facts, and that her video interview, statements and what she was said to have told the police at her mother’s home on the night of the alleged incident were in places inconsistent. Counsel for the Appellant at the Panel hearing submitted that the patient was either inconsistent or wrong about the following matters: i) whether the Appellant took a phone call during the consultation; ii) the colour of the gloves worn by the Appellant. She said that they were cream coloured when in fact they would have been blue; iii) whether or not the Appellant wore gloves during the vaginal examination; iv) whether the Appellant used one or two fingers to perform the vaginal examination; v) what clothes the Appellant was wearing; vi) whether the Appellant left the room during the consultation; vii) whether he wrote notes when he took her history.

[18]On the issues noted above i) The Panel noted that there was documentary evidence to corroborate the Appellant’s statement that at 18.24 he took a 47 second call from his wife which according to the timings from the CCTV evidence, happened while the patient was in the examination room with him. The patient had not mentioned that in her video interview. In cross examination she said initially that she could not remember at all whether the Appellant took a call during the consultation. But she did say that if the conversation had not been in English then she would have remembered that; ii) the Panel recorded that while the patient had said that the Appellant had worn cream coloured gloves, in fact the gloves available in the room were blue; iii) as to the wearing of gloves in the vaginal examination, the patient had said in her statement and in her video interview that the Appellant had put on gloves before the digital examination of the vagina. In another statement she had said that he had not been wearing gloves at the time; iv) as to the number of fingers he used, she had told the police on the evening of the incident that the Appellant had inserted two fingers. However, in her video interview five days later she had said that she could not remember if it was one finger or two; v) as to the clothing of the Appellant, the patient had told the police that the Appellant wore a white surgeon’s coat. In her video interview she referred initially to an “overall.” Later in the interview she could not remember what the Appellant was wearing, referring also to a shirt and tie. The CCTV film showed that the Appellant was wearing a short sleeved shirt during the consultation; vi) the evidence of the patient was that the Appellant did not leave the room at all during the consultation and that he summoned the HCA to take a urine sample for testing by standing at the door and “yelling” for her to come. However the CCTV footage showed with clarity that the Appellant left the examination room and walked in the direction of the nursing station to collect the HCA; vii) as to note taking, the patient’s recollection of whether the Appellant took notes in the interview varied. On the night of the incident she told the police that he had been asking questions and writing down the answers, but in her video evidence she stated that he had not written anything down except for the telephone numbers.

[19]Counsel for the Appellant also drew the Panel’s attention to the fact that the patient had made no complaint before leaving the hospital, and that it was her mother who had informed the police, after the patient had attempted to dissuade her from doing so. Further, the patient gave evidence that on leaving the hospital she had wanted to call her boyfriend “to get it off her chest.” She had told the police that she had altered the story a bit because she knew that her boyfriend would get really angry if he knew everything that had happened. She therefore did not tell him about the internal examination. In the event her boyfriend was very angry that she had been examined by a male doctor while she was in her underwear. The patient gave evidence that it was after her mother had complained to her about her incurring a parking ticket that she told her mother what had happened at the hospital, whereas the evidence of her mother, also given to the Panel, was that the conversation about the parking ticket had taken place after the patient had told her about the visit to the hospital. (4). The CCTV evidence and the evidence before the Panel about it

[20]The Panel received an agreed document which summarised the timing of the relevant events shown on the CCTV recording of the area of the examination room and the nursing station. (It should be noted that it was not known if the time shown on the CCTV had been calibrated against other sources of time, such as that used on the Appellant’s telephone). In summary it showed: i) at 18:18:40 the Appellant and patient A walked towards the examination room; ii) at 18:37:44 ( about 19 minutes later) the CCTV showed the Appellant appearing from the examination room and walking towards the nursing station; iii) at 18:38:20 the Appellant and a Health Care Assistant (“HCA”) walked back towards the examination room; iv) at 18:38:33 the same HCA was seen appearing from the direction of the examination room and walking towards the nursing station; v) at 18:40:48 (about two minutes later) the HCA was shown walking back again in the direction of the examination room; vi) at 18:41:11 (23 seconds later) the HCA re-appeared from the direction of the examination room; vii) at 18:42:15 (about 1 minute later) the patient was shown appearing, coming from the direction of the examination room. viii) at 18:44:35 (about two minutes later) the Appellant was seen appearing from the direction of the examination room.

[21]It was the patient’s account that during the 19 minute period (i.e. between (i) and (ii) above) the Appellant checked her notes, asked her for her mobile telephone, took a history, examined her abdomen as she lay undressed on the bed and in doing so carried out an inappropriate vaginal examination, and then checked her back and heart before telling her to get dressed. (5). The Appellant’s account

[22]The Appellant’s account was that during the 19 minute period he took a history from the patient, told her about health care assistant jobs at the private hospital where he worked, and took a 47 second telephone call from his wife which prompted him to discuss his evening plans and Indian food with the patient. He said that at 18:37:44 (i.e. sub paragraph (ii) above) he went to look for an HCA, and when doing so instructed the patient to get undressed and put on a gown. The Appellant said that on his return, patient A was sitting on the couch, wearing the gown but with her trousers still on. He asked her to lie down and then carried out a physical examination. The Appellant said that he carried out an abdominal examination including the inguinal area and examined her back, checked her kidneys and listened to her bowel sounds and her chest. The Appellant said that the whole examination would have taken about two minutes. He said that a vaginal examination was not indicated, and that he did not carry one out. The Appellant said that the HCA returned with the results of the “dip” tests on the urine sample, just after 18:48 (see (v) above). The Appellant said that by then he had already concluded that the patient was suffering from constipation or colitis and therefore decided that an internal examination was not necessary. He said that he reassured the patient that there was nothing serious going on and explained that she should eat a high fibre diet and drink plenty of fluids. He said that he did discuss contacting her about vacancies at the other hospital where he worked and as a result of this conversation she transferred her contact telephone number onto a piece of paper. The Appellant said that he then told her that the consultation was finished and that she could do up her clothes, but she remained in the room and the Appellant had the impression that she unhappy with his diagnosis, he therefore reassured her again and began to write up her notes while she put on her coat. At 18:42:15, about one and a half minutes after the HCA had delivered the results of the urine test, the patient left, leaving the Appellant in the room to finish writing up his notes.

[23]The Appellant admitted retaining in his mobile telephone the telephone numbers of both patient A and a second female patient who he had seen during the same shift. He said that he had retained the patient’s number in connection with inviting her about job possibilities as an HCA or enabling the recruitment staff at the private hospital where he worked to contact her directly. As to the other patient, she worked at a store where he had seen a video camera on offer which he had not managed to buy. He said that the patient had offered to inform him of any future offers. (6). Other evidence before the Panel

[24]The Panel also heard the patient’s mother, and received written evidence from the triage nurse at the hospital, from the police officers who had interviewed and talked to the patient, of the hospital notes, an expert report by a consultant in accident and emergency medicine, a transcript of the video interview of the patient, and a witness statement by her. (7). Evaluation by the Panel

[25]The Panel, in its written findings of fact, set out what it described as its “evaluation” so far as the patient’s evidence was concerned. It recorded that her recall of various contextual matters was not accurate, as for example in her wrongly recalling the colour of the surgical gloves, the clothes being worn by the Appellant and whether or not the Appellant left the room to call the HCA. It also noted that she did not recall the telephone call from the Appellant’s wife. It went on:

“However, the Panel took the view that these were incidental features and hence, minor errors. It was understandable that some details could not be accurately and/or consistently recalled, while the memories of the main event – the alleged internal vaginal examination – remain very much alive. This accords with everyday experience and in the Panel’s view does not materially undermine the credibility of [the patient’s] account of the consultation. The Panel took the view that it was entirely reasonable, in the light of what had just happened to the patient she would not report the alleged incident immediately referring instead to distance herself from the hospital. It attached no weight to the fact that she had not made an immediate complaint.”

[26]It noted a disparity between the accounts of the patient and her mother regarding the sequence in which the parking ticket was mentioned during the telephone conversation. It preferred the patient’s account of the sequence of events. The Panel believed the patient’s explanation of why she had not told her boyfriend the whole story. It rejected the possibility that the patient had invented the allegation in order to deflect attention away from the parking ticket she had received. It could find no sensible basis for the patient to be lying about the consultation and in particular about the internal vaginal examination. It went on:

“she never met (the Appellant) and the Panel could see no credible reason why she would make it up and thereafter subject herself to a forensic examination, various interviews and a Crown Court trial all of which are extremely stressful for her. It noted that she also had two opportunities to resile from her account.” (By “forensic examination,”

I assume that the Panel was referring to the medical examination of the patient as part of the Police investigation).

[27]The Panel also considered whether the Appellant’s version of events fitted in with the times from the CCTV recordings. It considered that it was unlikely that it would have taken 19 minutes to record the history that was recorded in the hospital notes, especially as there was nothing particularly complicated about the patient’s presentation. The Panel accepted that during the 19 minute phase the Appellant had had a conversation about the hospital in Putney and had taken a telephone call from his wife which he later discussed with the patient. The Panel was of the view that it was unlikely that he would have indulged in small talk to the extent that the history taking would last 19 minutes. It also rejected an argument of the Appellant that he had stretched the time as he wanted to leave earlier to attend a family party. The Panel noted that in the third phase of approximately one and a half minutes the Appellant said that he told the patient of his diagnosis and advised her about her diet and drinking fluids, and that while she put on her clothes the Appellant said that he discussed contacting her about the HCA jobs and transferred her mobile telephone number from the sticker onto a piece of paper. The Panel also referred to the fact that he said he had reassured the patient and that he had to repeat the diagnosis. The Panel took the view that to achieve all of that would have taken more than one and a half minutes.

[28]The Panel stated on this issue “the Panel found, on the balance of probabilities, that the CCTV timings were not consistent with [the Appellant’s] account of events. They were more consistent with the version of events accounted by (the patient).”

[29]The Panel rejected the Appellant’s explanations for his having the telephone number of either the patient or the other patient. The Panel accepted that there was a degree of risk of unexpected intrusion into the room during the consultation but it disagreed with the suggestion that there was a high degree of risk of discovery, since the consultation room door was closed and the act of opening it would have given some advance warning of a person entering. The Panel held that he had been clearly untruthful to the police when he had not mentioned his employment at the hospital in Putney and only mentioned his employment through an agency.

[30]The Panel then reached its conclusion and said this; “For the above reasons and having attached particular weight to its findings regarding the CCTV evidence and the inherent implausibility of your evidence regarding your taking of the mobile telephone numbers, the Panel has accepted (the patient’s) evidence in preference to yours.”

[31]The Panel also found proved the allegation that the Appellant attempted to make plans to meet with her to go out for a meal. The Panel found the allegations relating to the taking of the other patient’s telephone number to be admitted and proved in its entirety. The Panel then continued “The Panel had full regard to all the evidence in this case. It found that [the Appellant] carried out a vaginal examination on [the patient] which was not clinically indicated during a consultation in which the [Appellant’s] demeanour made (the patient) very uncomfortable. [The Appellant] complimented her on her body; made inappropriate comments about her sexual relations with her boyfriend and smirked/laughed when she said that she was uncomfortable. Additionally [the Appellant has] been found to have watched her undress, moved her underwear [himself] and failed to offer her a chaperone before [he] carried out an intimate examination. Further, at the conclusion of the consultation [he] attempted to meet [the patient] socially, retained her personal phone number and put it in [his] personal mobile phone. The Panel concluded that these actions were highly suggestive of sexual motivation and accordingly found this paragraph proved.” (8). Evidence which was not called before the Panel

[32]Althoughthe GMC and the Appellant were both aware of the existence of the two other witnesses to whom I have referred (both of whom had given statements to the Police as well as giving evidence in the criminal trial of the Appellant) neither was called to give evidence, nor was the statement of either placed before the Panel during the course of the hearing of the misconduct allegation. One was the HCA referred to above, and the other the boyfriend of the patient. At the criminal trial, the former was called by the Defence, and the latter by the Crown. Plainly, the CCTV evidence was important in showing when the HCA was or was not in the examination room with the Appellant and the patient. Given the important factual issues relating to what went on in that room, her evidence may be thought to have been potentially very important. The court has seen the transcript of her evidence before the Crown Court. I shall refer presently to what she said on that occasion. (9). The conduct of the Fitness to Practise hearing

[33]The GMC had served its proposed evidence. It did not include the evidence of the HCA or of B, the boyfriend of the patient. It listed the following: i) Three witness statements by patient A; ii) a witness statement from her mother; iii) a witness statement from the triage nurse; iv) witness statements from two police officers about patient A’s dealings with them; v) an expert’s report, with supplementary report, from Mr M T Hunt; vi) a copy of the hospital notes relating to the examination of patient A.

[34]No application was made on behalf of the Appellant to call any other evidence.

[35]The hearing then took place. Evidence was called by GMC, and there was in particular cross examination of the patient by the Appellant’s counsel. The Appellant gave evidence. Counsel for both GMC and the Appellant made closing submissions. It is then necessary to consider what happened after that in some detail.

[36]On day ten of the hearing, 25 April 2014, which was after the evidence had finished and final submissions had been made on behalf of the parties, the Panel reconvened. The Chair of the Panel said this: “The Panel has been reviewing the five days of transcript of evidence given in January alongside the documentary evidence contained in the various exhibits and it has been carefully considering the lengthy and detailed submissions that were made by counsel, both orally and in written form on 12 March. The Panel is finding the drafting of a full, reasoned determination on the facts to be extremely time-consuming so much so that, regrettably it is not yet completed. The Panel therefore intends to resume its in-camera deliberations next Monday, 28 April, when the parties need not attend. The determination will be sent to the parties in embargoed draft form in advance of the resumed hearing of this case which the Panel proposes should take place on 26 and 27 June.” (My italics)

[37]Counsel for the Appellant then asked the Panel if it would be possible for the Panel to provide their outline findings “without having a detailed determination.” Counsel for the GMC said this “It is of course a matter for the Panel. In my submission it is something that the Panel should be very loath to do; experience does tend to show that sometimes handing down these sorts of determinations can lead to more problems than it resolves, despite [the Appellant’s] anxiety. If, as I understand it, the proposal is that the deliberations be completed and the determination can be handed down on Monday or shortly thereafter, perhaps that is the safest and wisest course in the circumstances.”

[38]The legal assessor then gave this advice “As you will surely be aware, if you were to give any indication this evening then it would mean that you would be in very great difficulties in putting forward a different conclusion in your final determination once it had been finalised on Monday. My advice is that you should indeed be slow to accede to [counsel’s] application though I can well understand why it is she has received those instructions. We are, after all, dealing with a matter of three days from today because my advice would be that once you have finalised your determination then the dissemination of it, the promulgation, should take place as soon as possible thereafter rather than it being delayed until June.” The Panel stated, having considered the matter:

“It is decided to decline that request for such a provisional indication and we will do our best to notify you of it as soon as possible.”

[39]The draft determination of the facts was sent out on the 28 April. It was described as an “embargoed draft.” It contained the findings set out above.

[40]On 1 May 2014 the Appellant wrote to the Assistant Registrar of the MPTS as follows “I wish to bring to your attention that two witnesses have not been called by the GMC which are highly relevant to this case.(i) [The HCA] who was present around the examination, was summoned by the Court and gave evidence before the Crown Court in the same case. Her evidence has not been presented before the …. Panel.

(ii) The complainant’s boyfriend… also gave evidence before the Court and his evidence has also been ignored in this case. I would like to draw your attention to evidence as adduced during trial as below which are matter of records and cannot be ignored. I enclose these two transcripts that were made available to me yesterday.” (i) [The HCA] who was present around the examination, was summoned by the Court and gave evidence before the Crown Court in the same case. Her evidence has not been presented before the …. Panel. (ii) The complainant’s boyfriend… also gave evidence before the Court and his evidence has also been ignored in this case.

[41]He then supplied copies of the transcripts of the evidence at the Crown Court. He referred to the evidence of the HCA and to that of the complainant’s boyfriend , and went on “The above two evidences…adduced before the Crown Court confirmed that the patient was not examined during the 19 minutes but at the end of the consultations while the urine test was being done by the HCA. The above evidence is so important in this case that without this justice cannot be done to me. Any further new evidence found against any doctor in the trial could be produced before the Panel and I am sure that the Panel also wants a fair trial considering all evidences. I therefore request that these transcripts to be placed before the Panel for consideration before it (reconvenes). If above transcripts are not acceptable to the Panel without witnesses being called to give evidence then I request these two witnesses should be either summoned by the GMC or called by the party to give evidence under the oath to provide a fair trial and interest of justice.”

[42]On the 24 June 2014 the hearing resumed. By then the Appellant was not represented, and he was not present at the hearing. However, the Panel considered correspondence that had taken place between him and MPTS. It was brought to the Panel’s attention that he was seeking an adjournment. Counsel then instructed for the GMC, Ms Alexandra Felix, made a submission that “Because this hearing convened anticipating that the Panel would formally deliver its determination on Stage 1, that determination having already been sent to the parties under embargo on its publication pending that announcement. It was provided to [the Appellant] and his legal representatives not for the purpose of any kind of feedback or any kind of challenge to your reasoning for the determination you arrived at. It was issued of course for reasons of efficiency so that everyone would know what the determination was, what the reasoning was, and that would enable parties to prepare before the commencement of the hearing for their submissions if they were to follow, because of course at that time one could not have known what the determination would be, what submissions were to be made firstly on impairment and depending on that outcome, what submissions, if any, are to be made on the Stage 3 sanctions. You do not now, in my respectful submission, have jurisdiction to go back and re-make that decision. The remedy, if [the patient] is dissatisfied with it, is an appeal. I say you do not have jurisdiction to go back for two reasons, one is that the evidence has been heard. It is closed. You heard closing submissions, and of course you retired and made your determination. The evidence as I understand (the patient) seeks to now re-open and place before the Panel is evidence that was available before to him, as I understand it. It is evidence, as I understand it, that was led in the Crown Court proceedings which I know you are aware of.”

[43]Counsel for the GMC went on to submit the following “I would not want anyone to misunderstand the GMC’s position. We do not accept that if you were to adjourn, that would leave the door open for an application to re-open. It is simply a pragmatic approach that would really make no difference, because as we say it is not open for you to re-visit your determination in any event,…”

[44]After further submission and representations, counsel for the GMC summarised the reasons for the adjournment being sought by the Appellant as follows:

“ 1 he wants to make an application to re-open, 2 he wants legal representation in part to make that application, and 3 you would have seen a medical certificate which is in the bundle that was provided.”

She reminded the Panel of the authority of what she said was Court of Criminal Appeal authority dealing with the continuation of Crown Court proceedings in the absence of a defendant and submitted to the Panel that the same principle should apply. (It is actually a House of Lords authority- R vJones

[2003] 1 AC 1

). She was asked this by the Chair of the Panel:

“Can I ask you for want of a clarification, although it may not be material? You informed us that you believed we are functus…”

The Chair asked counsel for the GMC to elaborate on that and said this “We have made it clear that we have made our decision, and we have set it out, and it was for reasons of efficiency and not wanting to waste his money that we did not bring him up here to hear it but how do you say that is functus?” (The reference to the wasting of money is a reference to the Appellant having to travel from London to Manchester) Counsel for the GMC replied that “All it means is that you no longer hold office to make that determination. Functus Officio is beyond your jurisdiction already. You have made your decision you do not go behind it.” The Chair asked for confirmation that that applied even if the decision had not been pronounced openly, and counsel for the GMC submitted that that was the case. She was asked to produce any authorities; she said that she could if the Panel wanted it but that it was not a matter that should trouble them at this stage.

[45]There was then this exchange: Miss Felix - (for the GMC):

“Can I, just for the record unless anyone should come and look at this at a later stage when the Learned Legal Assessor talks about finalising the decision it is the formality of what is meant by that. The determination has been made and finalised. The Legal Assessor: “ I was not seeking to express any concluded view about the issue of functus officio, but the Panel has reached decisions on serious allegations that give rise to public interest and protection considerations so that is why they need to know.”

The Panel was then advised by the Legal Assessor that even though the determination had been embargoed and contained serious findings in relation to serious allegations there was no reason that it should be withheld from any interim orders Panel.

[46]There was then a further hearing on 26 June 2014, again in the absence of the Appellant. The session started with this statement by the Chair of the Panel “….The Panel concluded its findings of fact in camera on 28 April, and its determination was circulated to the parties on an embargoed basis later that same day. The Panel has reviewed that determination, and it has noted that there were two typographical errors that have now been corrected. The Panel confirms that in all other respects, the determination is the final version of its findings of facts under stage one which it reached on 28 April and which would have been read out and promulgated on that day had it not been for time constraints and in order to save unnecessary expense and inconvenience. The Panel had noted that [the Appellant] has expressed a wish to make further submission to the Panel relating to the facts of the case and the Panels finding of fact contained in the determination that was circulated in to the parties on 28 April 2014. However, the Panel has already concluded its findings of facts in camera and its decisions and reasons have already been communicated to the parties. In these circumstances it has concluded that it does not have the power to re-open the determination, and that even if it did have the power, it would not want to do so. “So this is the final determination on the facts which I am now going to hand down to you. You have of course on behalf of the GMC already seen it in draft……I will however for the benefit of the record, announce the principal finding but not put on the record all the reasons. They will be available.” (My italics).

[47]The Chair then summarised the findings and handed down its determination of facts on the issue of misconduct.

[48]On 26 August 2014 the Panel reconvened. The Appellant was present but unrepresented. The Appellant reiterated his submission that the two transcripts of evidence should be referred to. The Chair interrupted the Appellant and made it plain to him that so far as the Panel were concerned the stage dealing with misconduct could not be re-opened and they would not re-open it. The Appellant submitted that he should not be penalised for a mistake made by his lawyers. The Appellant asked that he could put his argument so that in the future if he went to the High Court he could say he had made a submission on this. The Chair did not permit him to make the submission but said this “I am going to turn to our Legal Assessor before I give you the courtesy of allowing you to continue and I do not want to stop you saying what you want to say, but I want to make sure as it is my responsibility that the way we move forward is, as you say, in accordance with the rules and takes account properly of known case law and precedents.”

[49]She then consulted the Legal Assessor. The Legal Assessor gave “firm advice” that the Panel had concluded stage one, had made its final determination on the facts and had expressed firm views as to the possibility of any suggested reopening in the earlier consideration of the case on 26 June of this year (when of course the Appellant was absent). The Assessor advised that “what I advise is not permissible is for ( the Appellant) to proceed to make a full application to reopen by reference to the facts before he satisfied you by reference to the sources that there is any legal justification for your hearing such an application to reopen the matters.” The Appellant said that he was referring to the Fitness to Practise rules regarding evidence. The Legal Assessor gave further advice that the application should not be heard in outline but that legal justification by reference to the rules should be given for even allowing the matter to be ventilated.

[50]The Appellant referred to paragraph 34 (1) of the rules. Before he had finished the Chair intervened to say that what he had been asked to do was provide legal justification for evidence that related to stage one which is finished, being produced at a later stage. The Appellant, who was not legally represented, said this (as transcribed):

“Where in the rules it says that if there is a very highly relevant document or evidence found it cannot be presented during any stage of the hearing? Does it say anywhere in the Fitness to Practise Rules where it is to stop producing those evidences?” 60. When the Chair invited him to say how it was that he interpreted rule 34(1) the Chair interrupted him again and would not let him finish. The Chair said that she had been sitting for many years and never come across this before and that in the past she had turned down applications to reopen the first stage because there was no power in the rules to reopen such a case. The Appellant said this “Madam in the interest of justice where I am going to be crucified for my sin which has not been done at all and in the interest of justice at least what those two transcript evidence is saying completely goes against your findings of the fact. So why do you not accept that sort of evidence? And in Fitness to Practise Rules 2004 nowhere it says that evidence will not be accepted at a stage 2 or a stage 3. If it says anywhere show me that it says that, it cannot be accepted at any stage at latter stage?”

The Appellant, despite some interruptions from the Chair, also pointed out that the rules did not prevent the reopening of a case.

[51]Counsel for the GMC suggested that he should be legally represented before the Panel determined the application, which was under the circumstances a sensible suggestion. The Chair asked the Appellant if he was going to seek further representation. He indicated that he had applied to the Bar Pro Bono Unit which is a charitable organisation, but that they were taking time to look at the documents. He said that they had suggested to him that he ask for an adjournment. The Chair then asked counsel for the GMC if there existed a power within the rules to reopen stage one. Counsel for the GMC submitted that the effect of rule 17(2) was that at the stage the Panel had now reached any evidence and submissions which the Panel was to receive was limited to the question of impairment on the basis of the facts found proved. She submitted that it was implicit within that procedural rule that the Panel cannot return to revisit its findings of fact.

[52]Counsel for the GMC also submitted that “As a matter of common sense and as general principle in relation to matters of law there must be finality in relation to the findings. If [the Appellant] is right and this Panel had an inherent power within their jurisdiction to reopen its own findings effectively it will then we would never come to a conclusion of any proceedings. That also reflects the common Law jurisdiction, sections of the criminal jurisdiction, whereby the findings of a jury, for example, are final so far as the facts are concerned and in some ways this Panel makes equivalent findings of fact. The remedy, if the doctor is to satisfy with the procedure if he has genuinely new evidence – and the Council briefly submit this is very far from satisfying any known test for new evidence – or, as appears to be the case here, the doctor wishes to complain at the way the proceedings were conducted by those who were represented him, his remedy is to pursue the avenues of appeal that exist not come into this (certainly …under Section 40 of the Act…) until the Panel has made a determination as to sanctions.”

[53]She also suggested that there could be an application for judicial review. She submitted further that there was no remedy to ask the Panel to reopen the findings of fact as the Panel had no power to do so. The assessor wisely suggested that the Chair see if the Appellant had any response to make. His attempts to address the Chair were unsuccessful because the Chair interrupted him to raise the question of whether or not the evidence was new. The Legal Assessor, again wisely, noticed that the arguments that were being developed by counsel for the GMC and to a degree by the Panel were irrelevant if the original view that there was no power to reopen was correct. However he went on:

“An appellate court would be asking the question “right, well when did this new evidence come to light?”

Now, if there is no jurisdiction full stop because this Panel is, to use the Latin expression, functus officio then it means it’s an irrelevance is it not.”

[54]The Chair indicated that that approach was correct and indicated that she only wished to hear the Appellant address the Panel on whether or not there was a power to reopen. After a short adjournment for him to consider his submissions the Appellant reiterated that there was nothing in the rules which prevented the Panel from reopening the case. He also referred to the contents of rule 17 (l) and (j) and was again interrupted by the Chair. The Appellant persisted in his submission that the rules did not say that the Panel did not have the power to reopen the case. He also referred to rule 35 and rule 36, and submitted that the Panel had powers. He reiterated that it was in the interest of justice that the Panel should be able to reopen the determination of fact because “if you have been misdirected or misguided on the two parties’ stories,but here is some independent witness who is telling something that you have not considered it. So this becomes quite important for you all so in the interests of justice to apply the power, or it does not stop you under the ruling, because it does not say anywhere that you cannot reopen it. So at least in the interest of justice you should hear those independent witnesses, what they say. Or at least if they are not available, you have power to compel them to come here. If they are not available at least their transcripts should be accepted.”

[55]The Legal Assessor said that he agreed with the submission made by counsel for the GMC and that the rules of rule 17(2) were obligatory and mandatory so that once the Panel had considered and announced its findings of fact under (i) the order could not be reversed. As the Panel had announced its findings of fact they now had to move to consider the question of impairment. The Assessor reminded the Panel of what it had said on 26 June to which I have already drawn attention. He therefore concluded that there was no power to admit the evidence. He said “My firm and unequivocal advice is that there is no jurisdictional power in you to reopen the facts and your findings of facts now that you have, indeed announced your decision on those facts.”

[56]The Panel then went on to announce its ruling that there was no power to reopen the findings of fact and the Appellant’s application to adduce further evidence was refused.

[57]On 28 August 2014, the Panel had assembled to read out the determination on impairment. Before it could do so the Appellant raised a point. He said that counsel for the GMC had handed over a skeleton submission. It was a contingent submission that in the event that the Panel made a finding that the facts found proved amounted to misconduct and that the doctor’s fitness to practise was impaired, it was an outline of what the GMC submissions would be as to the appropriate sanction of the reasons so that the Appellant would have an opportunity to absorb it and consider it. The Appellant then said this:

“Well she showed on there erasure, indicating that one of the lay members came and indicated for erasure. One of the lay members came out and informed her, indicating for erasure and then……”

[58]The Chair then intervened. She asked counsel for the GMC for clarification about whether she had informed the Appellant that the lay member of the Panel had spoken to her. The Appellant then said that what he had said was that it was one of the Panel members, and he did not say that counsel for the GMC had referred to the Chair, by which he meant one of the two members other than the Chair. The Chair regarded it as a serious allegation and invited counsel for the GMC to give any clarification. Counsel for the GMC referred to the discussion she had had with the Appellant the previous day. She said that she had provided the Appellant with a copy of her written submission and then said “during the course of that discussion [the Appellant] asked me whether I was able to amend or be more lenient in the suggested sanction being proposed by the General Medical Council. I explained that the decision as to what submission I made was not mine, it was made by people within the General Medical Council and that was something over which I had no control and it was certainly not something I was prepared to seek further instructions about given the circumstances of this case. It may be that [the Appellant] misunderstood the explanation as being a reference by me to a member of this MPTS Panel who, of course, historically members of the Panel were GMC Panellists as opposed to MPTS Panellists. But the reference I was making was to those within the General Medical Council who instruct me in relation to these proceedings. It was not intended and certainly I had not thought that [the Appellant] had understood that I was making any reference to any members of this Panel with whom I repeat I have had no interaction whatsoever and certainly not any discussion as to what the GMC submission would be as to sanction which would have been wholly inappropriate in the circumstances.” The Appellant stated “Let me say she clearly told me that one of the members came out, indicated this, and we could be released for today. So I would like to ask her who informed her to be released yesterday.”

[59]The Chair prevented him from asking a question of counsel (properly) and hoped that he was not accusing counsel of being a liar. The Chair suggested that he may have misunderstood and that counsel had clarified the position and then asked the Legal Assessor if he could assist. The Legal Assessor said this. “May I come to the assistance of [the Appellant] and put his mind at rest. Yesterday afternoon it was obvious that no decision on the issues of misconduct and impairment would be delivered until this morning, I informed [counsel for the GMC] outside of this room of the fact that no decision had yet been made and that it was, therefore, that the parties were to be stood down until this morning. So she and [the Appellant] were therefore released from then on for the rest of the afternoon. So if (the Appellant) believes someone had told [counsel for the GMC] about being stood down, that person was me, and I make no apology for having attempted to assist the parties…” The Appellant sought to continue with his point but the Chair stopped him from doing so. The Chair having indicated that it would not continue with this discussion any further, then permitted counsel for the GMC to make a further statement about whether or not there had been a discussion. However she did not permit the Appellant to respond to it, and set about attempting to read the determination of the Panel on impairment.

[60]The Appellant indicated his unhappiness about this course and asked that he should have an opportunity to be represented. He was concerned that “I cannot represent myself in the situation when we are having this argument and you are developing some bad impression about me which I have got no control over and I will be penalised for all these actions for which we are going through this so I need a lawyer here to represent me and I make a formal application for an adjournment because I am not happy with what you have done to me, the findings of fact. I don’t agree with the findings of fact, I have not done internal investigation why should I be penalised?

[61]The Chair then insisted that she be permitted to read the determination on impairment, and did so. (10). Contents of the transcripts of evidence of the witnesses, which the Appellant wished to put before the Panel

[62]I refer first to passages in the evidence of the HCA given to the Crown Court on 7 December 2011.The HCA described how she worked as a healthcare assistant in the Accident and Emergency Department, and had worked there for about 12 to 13 years. She said that her job involved the taking of observations, taking blood samples, cannulations, some treatments, plastering, minor treatments and chaperoning doctors. She said that she had been spoken to by the police on the day following the alleged incident. She had made a statement to the police on 10th February and asked questions by the police about a patient who was not the patient in question. The police then came back to her a couple of days later and said that the wrong patient had been discussed. She described how she had been shown a still photograph of the patient. She said that it was a photograph of the last patient she had seen that day with the Appellant. She went on to say this:

“I remembered the patient because I spoke to her after the examination…I was by the nurses’ station. It was some while after the examination had finished. I think the patient had left the department, but I’m not sure, but I didn’t see her for a while. I think she’d left and actually came back inside, and I asked her if she was alright, what was wrong and she said that she wasn’t happy with the diagnosis and I said, “I’ll see if I can find a doctor for you.”

She said then that “She just said she wasn’t happy with the diagnosis, could she see the doctor so I looked for him but he’d already left. And I looked at her notes, because they were still there, and it was constipation, and the doctor had just said, “Eat plenty of fluids and drink lots of water” so I just reiterated that to her.”

[63]Having said that it that it was an unusual occurrence for a complaint to be made to her, and that she had been asked to provide a statement that week, and therefore remembered the incident, she went on to describe what happened with regard to the consultation. Her evidence continued “Q Can I ask you about what you remember about the consultation? Do you remember at any stage going into or being part of this consultation? A “I was in there a few times, but I’ve got a bit confused, because I saw that many patients that day and three – the last three I can remember with [the Appellant] and I was in and out of the room, and [the Appellant] always waited for me and was calling for me to go into the room with him.” A “I was in there a few times, but I’ve got a bit confused, because I saw that many patients that day and three – the last three I can remember with [the Appellant] and I was in and out of the room, and [the Appellant] always waited for me and was calling for me to go into the room with him.” 75. She said that she could remember the last three patients whom he saw that day who were all quite similar. The evidence continued:

“Q. What can you remember about that, and did [the Appellant] speak to you at all about that patient? A. He asked me to go in there and I can remember him telling me it was constipation because I said was we going to be taking any swabs and he said, “No need. It’s just constipation.”

And then later “I quite clearly remembered the lady because I know she had a little woolly hat on, which I said to the solicitor, “I remember the last patient had a little woolly hat on” which when I saw the video tape, it was that patient with the little woolly – she had the same little hat on, so I knew I’d got the right patient,…” She said she didn’t remember much else about her appearance but went on:

“she had black trousers on, she had the gown on, when I went in the room, over her clothes.”

[64]She could remember that she had black trousers under the gown and then said this “I think it was that patient, but I had conversations with all the patients, but I know one of the patients on the day told me that her mum was a nurse, and she wanted to be a nurse. I think it was that patient, but it could have been one of the other two.”

[65]Then she was asked this by the Appellant’s counsel:

“Q. Did you at any stage see the doctor having any physical contact, laying on of hands, with this patient? A. I think so, but there was three patients that I… Q. I understand. A. I think he felt the tummy. Q. You think he felt the tummy? A. I think so….I think I saw him feeling the tummy.”

She then went on to say “I remember getting called back into the room to take the urine sample, to check the urine. I don’t know if I actually left the room or if I just – the room is kind of there, and then there is a little bit like this (indicating) as you’re leaving the room, and I don’t know if I’d gone to this part and I got called back or if he’d actually called me from outside, but he called back to check the urine that’s for pregnancy or infection.” A. I think so, but there was three patients that I… Q. You think he felt the tummy? A. I think so….I think I saw him feeling the tummy.” 78. She said that to carry out the dip-test she had taken it out of the room and across the hallway to the sluice room by the nurses’ station. She said that she noted that the test was all negative and then she went back into the room and told the doctor that it was all negative. There was then this series of questions and answers:

“Q. I know it is difficult, but can I press you a little bit? Can you remember anything further about this particular patient when you went back into the room, her state of dress or undress or otherwise? A. I think when I went back in the room, she was sat up then with her legs dangling off the trolley, and the doctor had his back to her because he was writing some notes. Q. What about her dress, can you remember that, I mean, you described her having a gown over her clothing, her outdoor clothing, with trousers on. A. Just sat there with her trousers and her gown, with her legs dangling off the couch, just sat up. Q. Okay. Alright, but were you surprised that you could not find a doctor after this complaint about the diagnosis? A. No, no. He was – he was rushing to go away because his wife had been calling, yes, and he had to go to a party. That’s why he was rushing. He was trying to hurry me up, but I was busy doing other things but he kept pushing me to go into the room with him because he needed to get off.”

She said she had a clear memory of that.

[66]She was cross-examined. She said that she was sure that she had recognised the patient in question from the photographs. She gave a description of two other patients but she was sure that the patient in question was the last patient. She told the prosecution counsel that she thought she had been in and out of the examination room twice while the patient was there. There was then this exchange:

“Q. Can you help us as to the sort of times that went on during those times? A. I’m not sure. I took somebody out of the room. I can’t remember if I took that lady into the room. I can’t remember, but I went in there when [the Appellant] called me and then I went back with the result of the urine sample. Q. So you went in there (would this be right as far as your recollection goes) after [the Appellant] had started his examination of her when he called you in? A. I can’t remember, because when I – I’ve seen the CCTV and it contradicts what I was thinking, because I thought that I was in there for the whole examination, but the CCTV shows that I wasn’t all that length of time, so I’ve got some false memory from that on the timing.”

She agreed that the CCTV showed a gap of 19 minutes when she was not in the room and she said that she agreed she may have been mistaken now that she had seen the CCTV. It was suggested to her that she had muddled up this patient with another one, but she denied that that had happened. There was then this exchange “Q. Because you’re not saying, are you, that [the Appellant’s] examination only took 13 seconds to conduct? A. Well I definitely saw him with the hands on the patient. I don’t how long to walk in a room…I have not timed it.”

[67]She then had the various timings of the CCTV film put to her and she agreed with what the CCTV film showed. There was then this exchange with prosecution counsel “Q. If there has been an examination of (the patient) then you couldn’t really possibly have been there during the examination. A. The only thing I can think, because I am still adamant that I was there in the room – excuse me. The only thing I can think of, I was in the room with [the Appellant] before the camera started, before you’ve got me on camera before the 18.37. Q. Are you then suggesting that you were in that room before [the Appellant] and [the patient] actually walked into the room? A. I was in and out of the room, as I said. Q. I am just asking you that, because I am going to ask you how that could be in a moment. Is that what you are suggesting? A. Like I said, I am not sure.….I find it all confusing, these times because I am sure I was in the room. In my mind I am sure. Q. Do you think it is because of the way you were asked about this, that as you said you’re memory is playing you false because you wanted to help [the Appellant]? A. I’m not here to help anyone. I’m just here under summons. Q. With the best will in the world, do you think it possible, bearing in mind the space of time, that your memory could well be faulty? A. Yeah, it is possible. It is possible, about the time.” A. Yeah, it is possible. It is possible, about the time.”

[68]The judge intervened to point out that the patient had denied that she had spoken to anyone in the hospital about the diagnosis. It was then put to the HCA “Q. Do you think again that you might be muddled about that and confused her with someone else who made a complaint at the same time? A. No, no, no. I am adamant that I did speak to her, definitely.”

[69]So far as the evidence of the patient’s boyfriend B is concerned, he said that the patient said to him “He’s gone too far. He touched me.” He said that she had told him that “While I was in – when I was getting seen to by the doctor, he touched me down there.”

[70]He also said that she had told him that the Appellant had taken her telephone number when in fact she had already given it to the receptionist. He said that she had told him that the doctor had made her take off her trousers and her knickers. He also said that she had told him that while she was in the room another nurse or another colleague was there, but that the colleague was asked to leave the room before the doctor examined her inappropriately. The boyfriend said that he had been very upset by what he was told. (11). The Grounds of Appeal

[71]The Appeal is brought by virtue of s 40(7) MA 1983.

[72]The original grounds were settled by the Appellant. For the purposes of the hearing before me they were condensed and distilled into four grounds, as follows; i) The Panel’s analysis of the patient’s and the Appellant’s credibility was wrong; ii) The Panel’s reasons for why it accepted the patient’s evidence over the Appellant’s were inadequate; iii) The Court should admit the evidence of the HCA and/or of the patient’s then boyfriend, in the light of which the Panel’s findings of fact were wrong; iv) The Panel’s failure to investigate an allegation of possible impropriety amounted to a serious procedural failing.

[73]I intend to deal with the third ground first, as if it succeeds it has a great effect upon the factual findings of the Panel. I shall then deal with the first and second grounds, and then the fourth, which is essentially free standing. (12).

(i) Argument

[74]I raised with Counsel the question of the procedure adopted by the FTP as to the giving of its factual findings. It was common ground that the Panel had to follow the procedure in Rule 17, i.e. there are the following stages, to be carried out sequentially Stage 1 Hearing of evidence on whether there has been misconduct (Rules (f) to (h)); Stage 2 Consideration and announcement of findings of fact (Rule (i)); Stage 3 Evidence and submissions on whether fitness to practise impaired by misconduct (Rule (j)) Stage 4 Consideration and announcement on impairment, with reasons being given (Rule (k): Stage 5 Evidence, submissions and then determination on sanction (Rules (l) and (m).

[75]The contentions of the parties were as follows. Mr Geering argued that i) “ announce” in Rule 17 means what it says. That did not occur until the decision on the facts was handed down on 26th June 2014. It follows that the Panel was bound to consider whether to receive and/or hear the evidence from the two witnesses before handing down its factual determination, when the application that it should do so was made before then by letter; ii) The Panel refused to consider exercising its discretion. Had it done so, the Court cannot be sure that it would have exercised it against admitting the evidence. Had it been admitted, it cannot be said that it would have made no difference.

[76]Mr Hare for the GMC argues that i) “announce” means that the parties are notified. Sending out the draft on 28th April amounted to an announcement. The time for the evidence to be received and/or called had therefore passed; ii) if that submission is wrong, the Appellant would have had to persuade the Panel to reopen its deliberations after the conclusion of the evidence called by the parties and of the final submissions. The evidence is not such that it would have made a difference. (ii) Discussion and conclusions on Ground 3

[77]As a matter of first impression, the GMC’s interpretation of the word “announce” seems highly improbable. The definition of “announce” in the Oxford Dictionary is “make a formal public statement about a fact, occurrence, or intention,” which suggests strongly that the approach of the GMC requires a distortion of the natural meaning of the word. But one must not only consider the natural meaning of the word, but also consider it in the context of the relevant Rules and the role of the Panel.

Q. You think he felt the tummy?

[78]The starting point must be to consider the role of the Panel. Its task under the Rules is to determine allegations of misconductagainst professional men and women, and hearing evidence to that end. Those allegations can, if proved, lead to a conclusion that the doctor’s fitness to practise was impaired, and in some cases to erasure from the register or suspension. In carrying out that function, it must sit in public (Rule 41) unless it decides to sit in private for good reasons. The public interest, and in particular the interests of open justice, requires that such proceedings are held in public. That applies with no less force to the parts of its proceedings where its decisions are given.

[79]It would be illogical if a Tribunal which is required to conduct its proceedings in public is then able to issue factual determinations otherwise than in public, unless some good reason under Rule 41 required it.

[80]The use of the word “announce” is therefore apt in that context. A finding under Rule 17(2)(i) is “announced”, so that all interested in the outcome of the hearing (including but not limited to the doctor concerned) know what has been concluded and why. If what was permitted was, as Mr Hare contended, simple notification to the parties, the word “announce” could not have been chosen. Still less could it be achieved by the issue to the parties of an embargoed draft, as the Panel seem to have thought.

[81]It follows that the Panel was not, despite the submissions made to it, deprived of the ability to consider the evidence submitted by the Appellant (or in the traditional legal phrase, which was used in submissions to the Panel on this point, the Panel was not functus officio) and it was not prevented fromexercising its discretion to receive and consider the evidence. It should have exercised that discretion at some time between receiving the Appellant’s letter and handing down the factual decisions, before reaching the next stage under Rule 17(2)(j). The transcript of the 24th June and of the preliminary stages on 26th June (when he was absent on both occasions) shows that the Panel did not address that issue, but was persuaded that it could not permit more evidence to be called.

[82]I agree that after the factual decision was announced, the Rules did not permit the admission of the evidence. It is of course right that a line must be drawn somewhere. That line is the announcement in Rule 17(2)(i), which had not been reached in this case at the time of the Appellant’s application. The question is how such a discretion is to be exercised after the close of speeches, but before the announcement of the findings of fact, which I will deal with below.

[83]That approach also reflects that relating to judgments of the High Court, where it is now common practice that a draft is circulated to the parties so that errors can be identified and corrections made. I would refer to Prudential Assurance Company Ltd v McBains Cooper & Ors

[2000] EWCA Civ 172

[2000] 1 WLR 2000

[2001] 3 All ER 1014

per Brooke LJ at paragraphs 26-7 “26 ………..This is the "handed down judgment" of which copies are to be made available in advance of the hearing 24 hours earlier than was allowed for in the previous practice. The express purpose of these arrangements was to enable the parties' legal advisers to consider "the judgment" and decide what consequential orders they should seek. The parties themselves were not ordinarily to be allowed to have the contents of the judgment communicated to them until an hour before the listed time for "pronouncement of the judgment" because "the judgment" is confidential until it is "given". The document which is sent to the parties' legal advisers in confidence is to be marked "unapproved judgment", and the reason why the procedure is being elongated is to enable minor corrections to be pointed out to the judge in time for them to be put right before the judgment is "handed down formally in court". 27 It is clear that when a copy of the judgment is sent to the parties' legal advisers in accordance with this new practice, it is not at that time being given or made within the meaning of CPR 40.7 ("a judgment or order takes effect from the day when it is given or made"): compare Holtby v Hodgson (1889 QBD 103). It is also clear that the judge is at liberty to alter the terms of his or her judgment (whether to make minor corrections or for any other reason) before handing it down formally in court. This, however, is nothing new, because it has always been within the powers of a judge to reconsider his or her decision at any time before it is entered and perfected (Re St Nazaire Co

(1879) 12 Ch D 88

, 91; Re Suffield and Watts ex p Brown

(1888) 20 QBD 693

697). It has also always been within a judge's powers to alter at any time his or her judgment if it has been delivered orally, although not so as to contradict the order made on the judgment once it has been perfected (see Secretary of State for Trade and Industry v Rogers

[1996] 1 WLR 1569

, 1578 and Medcalf v Mardell (CAT 2 March 2000, para 62).”

[84]But as Brooke LJ made plain at paragraph 27, a judge has a wider power than one of simple correction of errors, even when the stage has already been reached (unlike here) of judgment having been given. The law has been taken further since Prudential Assurance Company Ltd v McBains Cooper & Ors. It is now clear that even when a judgment has been handed down, a judge may under some circumstances revisit its findings. The authorities were reviewed by Baroness Hale of Richmond in Re L and B (Children),

[2013] UKSC 8

[2013] 1 WLR 634

[2013] 2 All ER 294

. I would refer to paragraphs 16-27 of her judgment. As Baroness Hale said at paragraph 16 “It has long been the law that a judge is entitled to reverse his decision at any time before his order is drawn up and perfected.”

[85]She then went on to review the authorities. I would refer in particular to paragraphs 19 -27, as follows19. “Thus there is jurisdiction to change one's mind up until the order is drawn up and perfected. Under the Civil Procedure Rules (rule 40.2(2)(b)), an order is now perfected by being sealed by the court. There is no jurisdiction to change one's mind thereafter unless the court has an express power to vary its own previous order. The proper route of challenge is by appeal. On any view, therefore, in the particular circumstances of this case, the judge did have power to change her mind. The question is whether she should have exercised it. Exercising it

20. As Wilson LJ pointed out in Paulin v Paulin

[2009] EWCA Civ 221

[2010] 1 WLR 1057

, para 30(c), "Until 1972 the courts made no attempt to narrow the circumstances in which it would be proper for a judge to exercise his jurisdiction to reverse his decision prior to the sealing of the order". He referred to In re Harrison's Share Under a Settlement

[1955] Ch 260

, in which the judge recalled an order approving the variation of a settlement on behalf of infant, unborn and unascertained persons, because after he had pronounced it but before it was formally drawn up the House of Lords had decided that there was no power to make such an order. The Court of Appeal rejected the submission that the order could only be corrected for manifest error or omission (as can a perfected order under the "slip rule"):

"When a judge has pronounced judgment he retains control over the case until the order giving effect to his judgment is formally completed": pp 283-284. The court went on to say that "

This control must be . . . exercised judicially and not capriciously" but that was all. The court clearly contemplated that people might act upon an order before it was drawn up, but they did so at their own risk. 21. In 1972, however, the Court of Appeal decided Inre Barrell Enterprises

[1973] 1 WLR 19

, in which it refused to allow the re-opening of an unsuccessful appeal in which judgment had been given some months previously dismissing the appeal but the order had for some reason never been drawn up. Russell LJ, giving the judgment of the court, stated, at pp 23-24, that:

"When oral judgments have been given, either in a court of first instance or on appeal, the successful party ought save in the most exceptional circumstances to be able to assume that the judgment is a valid and effective one. The cases to which we were referred in which judgments in civil courts have been varied after delivery (apart from the correction of slips) were all cases in which some most unusual element was present."

There was no such justification in that case. 22. In Paulin

[2010] 1 WLR 1057

, 1070, Wilson LJ also pointed out that the limitation thus placed on the proper exercise of the jurisdiction was "not universally welcomed". In Pittalis v Sherefettin

[1986] 1 QB 868

, Dillon LJ had in effect "emasculated [it] into insignificance" by pointing out that it was exceptional for a judge to be satisfied that the order he had previously pronounced was wrong. 23. In Stewart v Engel

[2000] EWCA Civ 362

[2000] 1WLR 2268

, the Court of Appeal unanimously held that the power to recall orders before perfection had survived the coming into force of the Civil Procedure Rules 1998. However, for some reason (probably the submissions of counsel) they termed this "the Barrell jurisdiction". By a majority, they affirmed the Barrell limitation, which Sir Christopher Slade said "must apply a fortiori where the judgment is a formal written judgment in final form, handed down after the parties have been given the opportunity to consider it in draft and make representations on the draft": pp 2274, 2276. 24. Clarke LJ dissented on this point. He did not think that the court was bound by Barrell to look for exceptional circumstances. He clearly took as a starting point the overriding objective in the Civil Procedure Rules of enabling the court to deal with cases justly. He considered that the judge had been right to direct himself that the examples given by Neuberger J in Inre Blenheim Leisure (Restaurants) Ltd (No 3), The Times, 9 November 1999,- a plain mistake by the court, the parties' failure to draw to the court's attention a plainly relevant fact or point of law and the discovery of new facts after judgment was given - were merely examples:

"How the discretion should be exercised in any particular case will depend upon all the circumstances": [2000] 1WLR 2268, 2285 . 25. Other formulations of the Barrell principle have been suggested. In Cie Noga D'Importation et d'Exportation SA v Abacha [2001] 3 All ER 513, Rix LJ, sitting in the Commercial Court, referred at para 42 to the need to balance the concern for finality against the "proper concern that courts should not be held by their own decisions in a straitjacket pending the formality of drawing up the order"

. He went on, at para 43:

"Provided that the formula of 'exceptional circumstances' is not turned into a straitjacket of its own, and the interests of justice and its constituents as laid down in the overriding principle are held closely to mind, I do not think that the proper balance will be lost. Clearly, it cannot be in every case that a litigant should be entitled to ask the judge to think again. Therefore, on one ground or another the case must raise considerations, in the interests of justice, which are out of the ordinary, extraordinary or exceptional. An exceptional case does not have to be uniquely special. 'Strong reasons' is perhaps an acceptable alternative to 'exceptional circumstances'. It will necessarily be in an exceptional case that strong reasons are shown for reconsideration." 26. In Robinson v Fernsby [2003] EWCA Civ 1820, [2004] WTLR 257 May LJ commented that "that expression ["exceptional circumstances"] by itself is no more than a relatively uninformative label. It is not profitable to debate what it means in isolation from the facts of a particular case" (para 94). Peter Gibson LJ commented, at para 120: "

With one possible qualification it is in my judgment incontrovertible that until the order of a judge has been sealed he retains the ability to recall the order he has made even if he has given reasons for that order by a judgment handed down or orally delivered. . . . Such judicial tergiversation is in general not to be encouraged, but circumstances may arise in which it is necessary for the judge to have the courage to recall his order. If . . . the judge realises that he has made an error, how can he be true to his judicial oath other than by correcting that error so long as it lies within his power to do so? No doubt that will happen only in exceptional circumstances, but I have serious misgivings about elevating that correct description of the circumstances when that occurs as exceptional into some sort of criterion for what is required . . . " The possible qualification was when the judgment has been reasonably relied upon by a party who has altered his position irretrievably in consequence. 27. Thus one can see the Court of Appeal struggling to reconcile the apparent statement of principle in Barrell

[1973] 1 WLR 19

, coupled with the very proper desire to discourage the parties from applying for the judge to reconsider, with the desire to do justice in the particular circumstances of the case. This court is not bound by Barrell or by any of the previous cases to hold that there is any such limitation upon the acknowledged jurisdiction of the judge to revisit his own decision at any time up until his resulting order is perfected. I would agree with Clarke LJ in Stewart v Engel

[2000] 1 WLR 2268

, 2282 that his overriding objective must be to deal with the case justly. A relevant factor must be whether any party has acted upon the decision to his detriment, especially in a case where it is expected that they may do so before the order is formally drawn up. On the other hand, in In re Blenheim Leisure (Restaurants) Ltd, Neuberger J gave some examples of cases where it might be just to revisit the earlier decision. But these are only examples. A carefully considered change of mind can be sufficient. Every case is going to depend upon its particular circumstances.”

[86]It is to be recalled that we are here dealing with the issue of reconsideration before the findings of fact have been announced under Rule 17(2)(i). Given the fact that the FTP rules contain no provision dealing with an application to call further evidence after the draft factual decision has been sent to the parties, one must consider whether there are good reasons not to find an implicit discretion, when the nature of such a discretion in a tribunal exists, in the words of Baroness Hale, so as to be able to do justice in the particular case before it. I note also the point taken by the Appellant before the Panel, that there is nothing in the Rules which prevents the Panel from reopening its hearing into the misconduct issue.

[87]In my view it is very difficult to accept the concept that a fact finding tribunal, whose decisions on facts can affect the ability of a professional man or woman to practise, and which sends out an embargoed draft, is unable to receive anything other than proposed corrections to its draft , which go to insignificant matters such as a typographical correction, a mistaken reference, or an infelicity of syntax. Suppose that a Panel had reached a draft conclusion on an important factual issue, which entirely independent and unchallengeable subsequently obtained evidence, not hitherto available to the parties, showed was untenable? For example, suppose that a Panel has concluded in its draft that a male doctor in a busy hospital had misconducted himself towards a female patient, who alleged that she had shouted at him and had sought to escape from the examination room until dragged back in by the doctor. The Panel has acted on the evidence before it and has sent out a draft decision in which it has found against the doctor. Unknown to anyone, a member of staff not concerned with that doctor or the patient was actually in the vicinity, and can now give evidence that there were no raised voices and no attempt by the patient to escape. Or suppose that evidence emerges that a DNA analysis which had been submitted in evidence and which had shown that the semen of the doctor accused of misconduct was on the patient’s clothing, had now been checked and had been found to contain serious errors which undermined its force? Is the Panel then prevented from deciding to receive such evidence? Mr Hare submitted that the remedy was only one of appeal to this court.

[88]I agree with him that if the Panel’s approach was right, the only way in which such an injustice could be righted is by the exercise of an appeal under section 40 of the MA 1983, or perhaps by judicial review of the Panel as it turns to deal with the other stages under Rule 17(2). (Although the existence of the right of appeal under s 40 MA 1983 may render the judicial review route problematic.) But such an appeal can only be made after the sanction has been determined, and a judicial review application, if it could be entertained, would cause significant delay to all parties. I regard such an exclusionary rule, were it to exist, as inherently unjust. If there is evidence, which if accepted would tend to show that the draft conclusions reached by the Panel were wrong, it is artificial, and wasteful of resources, to insist that in all cases its admission can only be dealt with if there is an appeal or an application for judicial review. The examples cited above show how unjust such an approach would be.

[89]Are there countervailing considerations? It is plainly undesirable to have a general rule that a hearing can hear all the evidence put before it by the parties, and then still be required to hear more evidence some weeks later after sending out its draft findings. That too could produce a waste of resources and lead to the unnecessary reopening of Panel hearings, and potentially lead to the recall of witnesses who have already had to go through the strain of giving evidence. But that may occur anyway if such evidence is had regard to by the appellate court and a rehearing of some or all of the evidence is required to give effect to the court’s directions (if an order is made under section 40(7)(d) of the MA 1983).

[90]In my judgment there are no considerations which are of such force that the discretion should not be held to exist in a case before the Panel.

[91]I have referred to cases where the evidence which becomes available was not known of at the time of the hearing. I have done so in the context of testing the approach to Rule 17 adopted before me by Mr Hare for the GMC. But the fact that Rule 17 does not prevent the exercise of the Panel’s discretion does not thereby circumvent the application of principles relating to the adduction of evidence whose existence was known at the time of the hearing. The law still requires that they are addressed as part of the process of how to exercise that discretion in a particular case.

[92]The traditional test for the admission of new evidence at the appellate stage is to be found in Ladd v Marshall

[1954] 1 WLR 1489

, where Denning LJ set out the test for the introduction of fresh evidence on appeal:

"..to justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly, the evidence must be such as is presumably to be believed or in other words, it must be apparently credible although it need not be incontrovertible."

[93]But that test, which it is to be observed, applies at the appellate stage, has now been softened in the rigour of its effect. It was applied by Silber J at first instance in Muscat v Health Professions Council

[2009] EWCA Civ 1090

, but the Court of Appeal, while dismissing the appeal of the health professional (a radiographer) in that case, considered the application of the principle. Muscat is an important authority, whose approach to this issue deserves close consideration. The Appellant in that case was alleged to have caused two female patients (on different occasions) to remove their clothing for the purposes of carrying out a scan, when it was not required. The Appellant denied that the incidents had occurred, and accused the two patients of lying. He also contended that their recollections were unreliable because of the effects on them of analgesia. Shortly before the hearing before Silber J, the Appellant sought to introduce new evidence, which included a report from a pharmacologist, who opined as to the probable or possible effects on the complainants of the drugs which they had been given shortly before the incidents in question. The Court of Appeal dismissed the appeal, but set out the approach to be adopted. Smith LJ (with whom Longmore and Maurice Kay LJJ agreed) said this at paragraph 14 onwards “The admission of fresh evidence 14 Silber J summarised the effect of Dr Taberner's opinion as to the effect of the prescribed drugs on JB and NG. 15 At the time of the X-ray, JB had had a single intravenous injection of 5mg of morphine for analgesia. Dr Taberner expressed the view that this would be likely to have produced some degree of sedation and mental clouding lasting for 'up to one to two hours at least' after the injection. The drug would not have caused loss of memory or amnesia. He noted that JB had said in her statement that she had felt 'groggy' as a result of the morphine. Dr Taberner added: "It is possible, though much less likely, that she experienced delusional behaviour as a consequence of the morphine, although she may well have found it more difficult to understand detailed instructions." 16 NG had taken three drugs, Diazepam, pethidine and Tramadol. Dr Taberner said that these would be very likely to produce a state of mental clouding, confusional behaviour with some loss of memory and recall. He said that pethidine has `delusional and possible hallucinatory side-effects which could alter the perception of events which took place while under the influence of these drugs'. He opined that the significant cognitive-impairing effects of these three drugs should be taken into account when considering NG's evidence.” After setting out Silber J’s consideration of authority, Smith LJ went on: 21 “Silber J then set out the rival submissions as to the factors to be taken into account. It was accepted on both sides that the third Ladd v Marshall test was satisfied in that Dr Taberner's evidence was 'apparently credible'. However, Silber J was of the view that neither the first nor second test was satisfied and that, taken together, those factors convinced him that the evidence should not be admitted. First, he said that no evidence had been advanced to explain why Dr Taberner's report had not been obtained in time for its introduction at the hearing. He inferred that there was no satisfactory explanation. He laid considerable stress on this, saying that, in his view, this factor was `fatal to the application' to admit the evidence. He repeated the citation from May LJ in Marchmont” (Marchmont Investments Ltd v BFO SA

[2007] EWCA Civ 677

) “stressing the need for finality in litigation. The judge then considered the second test, whether the evidence, if admitted, would 'probably have an important influence on the result of the case'. He noted that the Appellant's defence had entailed the suggestion that the complainants' evidence was unreliable inter alia because of the drugs they had taken. The judge considered that Dr Taberner's evidence could not have had an important influence on the evidence because the Panel had in any event been aware that the drugs had had some effect. JB accepted that she had been groggy and had no recollection of another X-ray on the day in question. Yet the Panel had been satisfied that the witnesses had been reliable. The judge concluded by saying that Dr Taberner's evidence did not take matters much further, 'especially as he had not examined the complainants and this probably explains the cautious nature of his findings in which he explains what is likely to be the position rather than what was the actual position'. 22 Mr William Edis QC for the Appellant submitted that, although Silber J had cited the relevant passages of the authorities and had identified the relevant principles, when he came to apply those principles to the facts of the case he had not exercised his discretion in the interests of justice but had considered only the factors in Ladd v Marshall. He had declared that the fact that the first condition was not satisfied was 'fatal to the application'. That demonstrated that he had not exercised his discretion taking all relevant matters into account. 23 Second, Mr Edis submitted that the judge's holding that new evidence would probably not have an important influence on the result was unsustainable and wrong. First, the judge had been wrong to say that Dr Taberner's opinion was 'cautious' because he had not examined the complainants. Dr Taberner was an expert on the effect of drugs and there was no point in him examining the complainants. Nor had his opinion been 'cautious'; his opinion was clearly expressed. Of course he could not say exactly what effect the drugs had had on these individuals because drugs do not affect everyone in exactly the same way. So the judge's perception of Dr Taberner's evidence was flawed. Also, submitted Mr Edis, the judge had been wrong to consider that Dr Taberner's evidence would not have made much difference. The judge had taken that view because the Panel had been aware that the complainants had been affected by drugs and yet had still accepted them as reliable witnesses. Mr Edis submitted that this was wrong because the Panel had only had in mind the possibility that the drugs might have affected the complainant's memories whereas Dr Taberner's evidence went further and brought into question the possibility that drugs might have caused the complainants (or at least NG) to experience hallucinations. 24 Ms Jenni Richards for the respondent submitted that the judge's approach had been correct. He had been entitled to conclude that the absence of any explanation (let alone a good explanation) for the failure to obtain an expert report in time for the hearing was a factor of such importance that the judge was entitled to consider that it and it alone was fatal to the application. That was so even though it was clear, in her submission, that the judge had also taken other considerations into account. The judge had also been right to conclude that Dr Taberner's evidence could not have had an important effect on the outcome of the hearing. 25 In my view, the way in which the judge expressed his conclusions in respect of the admission of Dr Taberner's report was, perhaps, a little unfortunate. After directing himself impeccably as to the law and having noted that, since the introduction of the CPR, a decision to admit fresh evidence was not to be confined within the old Ladd v Marshall straightjacket, he did appear to apply his mind only to the Ladd v Marshall principles and did not expressly consider the wider range of factors which were potentially relevant to the exercise of his discretion. However, that said, consideration of the Ladd v Marshall principles would, in my view, place a very great impediment before the exercise of a discretion in the Appellant's favour. There was absolutely no explanation for the Appellant's failure to obtain expert evidence as to the potential effect of the drugs on the complainants' minds. 26 In my view, it might also be said that the judge underestimated the potential importance of the expert evidence. Although it seems to me that the fresh evidence could not have been of any significance in considering the evidence of JB, it could be said that the possibility that NG had imagined the incident might have affected the Panel's view of her reliability. However, the evidence could hardly be described as a 'silver bullet', the admission of which would almost certainly have affected the Panel's view. The potential effect would be even more limited if the Panel were to take the view that these two incidents were sufficiently similar that the evidence of each complainant could be treated as supportive of the other. It would be most surprising if the minds of two women had imagined two similar events. 27 Thus, it seems to me that, if one took the view that this was ordinary litigation, there would be an overwhelming case against the admission of this evidence because there was absolutely no excuse for the failure to obtain the evidence for the hearing and, when the evidence was considered, it was not of great significance. However, Mr Edis submitted that this was not ordinary litigation. There was a real public interest in the outcome of the proceedings. It was important from the public perspective, that the correct decision was reached. It is not in the public interest that a qualified health professional, capable of giving good service to patients, should be struck off his professional register. 28 I would accept that that is a factor to be taken into account and, in so far as the judge did not mention it, his decision is, in my view, open to review. However, when weighing up the importance of this factor, it is necessary in my view to consider a factor which I mentioned earlier, namely the Committee's power to review its own decision in relation to a strike off order if new evidence becomes available. This was not an issue which was raised before the judge. It was raised by this Court at the outset of the hearing, as it seemed to us that, if there was a power to review, that was the course which the Appellant should take to secure the admission of fresh evidence. However, as Ms Richards pointed out, the right of appeal co-exists with the right to seek a review and the Appellant had originally taken a number of points on the appeal which would not have been appropriate on review. Accordingly, given the range of issues which the Appellant had raised, she did not suggest that review rather than appeal would have been the appropriate course. However, now that the issue was narrowed to the admission of fresh evidence, she invited us to determine the appeal bearing in mind that there was an alternative course for the Appellant to take (review), even at this late stage.”

[94]However the power of review which existed in that case (under regulation 30(7) of the Health Professions Order 2001, made pursuant to Section 60 of the Health Act 1999) does not exist in the case of medical practitioners (see section 41(2) of MA 1983). That unusual feature of the Health Professions Order was noted by Smith LJ at paragraph 35. After considering the relevance of the right of review in that case she went on at paragraphs 36-40: 36 “Ms Richards (for GMC) submitted that the existence of the right of review (which is available to the Appellant at any time) provides an additional reason why we should dismiss the appeal to this Court. As the only issue in the appeal (as to liability) is the admission of fresh evidence, the appropriate course is let the Committee decide whether the evidence should be admitted. 37 Mr Edis (for the Appellant) submitted that we should consider the appeal on its merits regardless of any right of review by the Council. His submission is that, because of the public interest in assuring that the strike-off was warranted, the interests of justice require a broader approach to admissibility of fresh evidence than that applied in ordinary party and party litigation. 38 In my view, the existence of the right to a review is a factor to be taken into account when exercising the discretion as to whether this Court should admit the fresh evidence on appeal. The 2001 Order provides for review of a finding that an allegation has been proved in cases where fresh evidence might make a difference. It seems to me that that provision recognises the importance, in the public interest, of the Committee making the right decision. In my judgment, this review provision meets that public interest. 39 In my view, the existence of the power of review greatly diminishes the importance of the public interest point relied on by Mr Edis. The review provision safeguards the Appellant from the risk that an unjustified finding of guilt might go uncorrected in the light of fresh evidence. The Appellant does not need this court to direct its admission. The Committee will consider the fresh evidence and will take whatever action it considers appropriate. It is in a far better position to assess the potential importance of Dr Taberner's opinion than this court could ever be. Accordingly, I would reject Mr Edis's submission that this appeal should be treated quite differently from 'ordinary litigation'. 40 Against that background it seems to me that the force of any criticism of Silber J's decision is much reduced. The Ladd v Marshall principles were indeed at the heart of the exercise of discretion. Even if Silber J was too dismissive of the potential relevance of the evidence, he was entitled to say that the Appellant had provided no excuse for failing to obtain the evidence in time for the hearing and had shown no special reason why that failure should be overlooked. Taking all the factors into account, (that is the first and second Ladd v Marshall principles, the public interest in the correct outcome in a striking off case and the existence of the Committee's power of review) I have no hesitation in saying that I would exercise my discretion against the admission of this fresh evidence. I would dismiss the appeal on the first ground.”

[95]Given the absence of an equivalent review mechanism in the case of medical practitioners, I regard Muscat as important in its recognition of the factor that it is not in the public interest that a qualified health professional, capable of giving good service to patients, should be struck off his professional register, and that that is a factor which, in an appropriate case, can justify departure from what Smith LJ pithily described as “the old Ladd v Marshall straightjacket.”

[96]In Jasinarachchi v General Medical Council

[2014] EWHC 3570 (Admin)

, Stewart J was dealing with an appeal against the sanctions imposed, and not the finding of impairment by misconduct. The second ground of appeal before Stewart J was that, since the decision, matters had come to light concerning the practical consequences of suspending a trainee doctor's registration. It was said that this cast a fresh light on the determination, making it unduly harsh and disproportionate and that this cannot have been envisaged by the Panel. If this basis succeeded, and the first ground did not, the Appellant invited the court to remit his case for further consideration on the issue of sanction exercising the power under section 40(7)(d) of the Act. At paragraph 37 of his judgment, Stewart J allowed the second ground, saying “37 I rule in favour of allowing the additional evidence and in favour of A's case on this basis for the following reasons:(i) Although the first principle in Ladd v Marshall cannot be relied upon by A, the culpability of A is not particularly high in this regard. He was represented. However, there is no evidence to suggest that anybody appreciated the possible consequences of his suspension. It is correct that the Gold Guide then in force made it clear that the NTN would be given up if a trainee was suspended and that (at that stage) there would be a right of appeal; further that it was open to those who had had their training numbers removed to reapply for competitive entry to specialty training at a later date should circumstances change. Nevertheless, whilst paying proper regard to the fact that all the principles in Ladd v Marshall are of relevance and of powerful persuasive authority, I do not regard the lack of compliance with this first principle to be determinative. There is no suggestion that the Postgraduate Dean in any way alerted A or his lawyers to these consequences and no evidence that the Panel was aware of them.

(ii) As to the second principle in Ladd v Marshall, it is difficult for the court, on the basis of the evidence provided, to quantify the risk that A's GP specialty training may be at an end if he is suspended. Looking at the evidence of Ms Willmott, I nevertheless consider that there is a real risk that this will occur. Nobody was aware of any precedent of a suspended trainee applying to get back on the Register and what the prospects of success were or were not. It will of course be open to the FTPP to come to the same conclusion i.e. that A should be suspended. That said, I do regard the fresh evidence as probably having an important influence on the result of the case. It may indeed not be decisive but that is a matter for a properly informed FTPP to decide.

(iii) Clearly the fresh evidence is credible, especially as in the circumstances I am basing my judgment on Ms Willmott's testimony.

(iv) Considering the overriding objective this, in my judgment, is one of the perhaps rare cases where, notwithstanding that one of the Ladd v Marshall principles has not been complied with, justice requires the fresh evidence to be admitted and for the matter to be considered by the FTPP. Both parties agree, and the order reflects, that this will not be a re-hearing of the case but merely a hearing which takes into account the fresh evidence so as to decide what if any difference it makes to sanctions. That also is a relevant factor, namely that the further disciplinary process will be limited in extent.” (i) Although the first principle in Ladd v Marshall cannot be relied upon by A, the culpability of A is not particularly high in this regard. He was represented. However, there is no evidence to suggest that anybody appreciated the possible consequences of his suspension. It is correct that the Gold Guide then in force made it clear that the NTN would be given up if a trainee was suspended and that (at that stage) there would be a right of appeal; further that it was open to those who had had their training numbers removed to reapply for competitive entry to specialty training at a later date should circumstances change. Nevertheless, whilst paying proper regard to the fact that all the principles in Ladd v Marshall are of relevance and of powerful persuasive authority, I do not regard the lack of compliance with this first principle to be determinative. There is no suggestion that the Postgraduate Dean in any way alerted A or his lawyers to these consequences and no evidence that the Panel was aware of them. (ii) As to the second principle in Ladd v Marshall, it is difficult for the court, on the basis of the evidence provided, to quantify the risk that A's GP specialty training may be at an end if he is suspended. Looking at the evidence of Ms Willmott, I nevertheless consider that there is a real risk that this will occur. Nobody was aware of any precedent of a suspended trainee applying to get back on the Register and what the prospects of success were or were not. It will of course be open to the FTPP to come to the same conclusion i.e. that A should be suspended. That said, I do regard the fresh evidence as probably having an important influence on the result of the case. It may indeed not be decisive but that is a matter for a properly informed FTPP to decide. (iii) Clearly the fresh evidence is credible, especially as in the circumstances I am basing my judgment on Ms Willmott's testimony. (iv) Considering the overriding objective this, in my judgment, is one of the perhaps rare cases where, notwithstanding that one of the Ladd v Marshall principles has not been complied with, justice requires the fresh evidence to be admitted and for the matter to be considered by the FTPP. Both parties agree, and the order reflects, that this will not be a re-hearing of the case but merely a hearing which takes into account the fresh evidence so as to decide what if any difference it makes to sanctions. That also is a relevant factor, namely that the further disciplinary process will be limited in extent.”

[97]Although Muscat was not consideredby Stewart J (and not apparently cited before him), the approach of no longer regarding Ladd v Marshall as setting tests which are solely determinative of an application to adduce fresh evidence, is again emphasised.

[98]But one must emphasise again that both Muscat and Jasinarachchi are cases relating to the appellate stage where no issue arises of whether the Panel should have exercised its discretion to admit the evidence before announcing its decision on the factual findings of whether misconduct impaired the practitioner’s fitness to practise. It follows that the true issue in this case is not whether I should consider if, in the exercise of my appellate jurisdiction, the evidence passes the appropriate tests in Ladd v Marshall assubsequently applied in the context of decisions about health professionals but whether, had it exercised its discretion, it has been shown that the Panel would have refused to admit it, or that if it had admitted it, it has been shown that it would have made no difference to the findings of impairment made by the Panel.

[99]Given the existence of the discretion in this case, the issues for the Panel on the exercise of discretion would have been; i) what was the relevance of the new evidence? ii) why had it not been called before? iii) what significance did it have in the context of the draft findings of the Panel? iv) what effects would its admission have on the conduct of the hearing, and in particular on a) the need to recall witnesses b) the length of the hearing v) taking all matters into account, would justice be done if it were not received and heard ?

[100]It is of course for the Panel what weight they give to the various elements. It is not to be thought that the existence of the discretion means that it is always or even often to be exercised. The Panel, like judges in criminal or civil trials, will be astute to avoid the unnecessary prolongation of hearings by those who are simply dissatisfied by the draft factual decisions which have been made. Applications must, and I am sure will, receive anxious scrutiny.

[101]However in the period before the decision was announced (on 26th June 2014) this Panel never addressed how or whether to exercise its discretion, let alone considered what if any weight it should attribute to any factor. Instead it simply proceeded on the basis that it did not have a discretion. I have some considerable sympathy with the Chair and the Panel, who sought help from the GMC and the legal assessor on this very point, but were told, and as I have held told erroneously, that the Panel had no power to consider the matter.

[102]Was the evidence of the HCA such that one can safely say that the Panel, even if properly advised, would still have refused to permit its adduction? The evidence of the HCA was on any view of particular relevance. If accepted as reliable, the evidence of the HCA showed the following: i) the nature of the abdominal examination when she was in the room; ii) the timing of that physical examination in relation to the “19 minutes” period in which the patient said she had been subjected to the fingering of her private parts; iii) the complaint made to her related to the diagnosis, and not the nature of the examination.

[103]It is correct that her own recollection of timings was contradicted by the CCTV, and some parts of her recollection were less than certain, but that does not deprive her evidence of relevance. The reliability of a witness is not wholly lost because of some mistakes within his or her evidence. One notes that the patient herself made what the Panel regarded as some mistakes in her recollection as well, but was held to be reliable and truthful on others.

[104]Mr Hare suggested that the evidence was unreliable and that the witness could not be sure. Given that the burden of proof before the Panel was on the GMC, it would be enough if her evidence cast doubt on the case being presented against the Appellant. But in any event I reject the suggestion that her evidence is such that I should decide that it would necessarily have been disregarded by the Panel had it exercised its discretion. It contains enough material, if accepted, to at least cast doubt on the evidence of the patient on some issues of critical importance.

[105]I would also note that this is a case where the evidence adduced against the Appellant was itself not free from inconsistency and confusion. Without the evidence of Patient A (parts of which conflict with that of the HCA on important matters) there was nothing which could have justified a finding of misconduct. It follows that no reasonable Court could conclude that the outcome must have been the same even if the HCA’s evidence had been heard.

[106]I have had no reason put before me as to why the evidence of the HCA was not called before, by either the GMC or the Appellant. It is of course right to say that the Appellant was represented by a highly competent solicitor and counsel, but there is on the face of it nothing about the evidence which would lead to a view that it was dangerous to call the witness, who had after all been called on behalf of the Appellant at the Crown Court, when the Appellant was acquitted. It is true that she did say that the patient had complained to her, but about the diagnosis only, in a conversation the patient had denied. That part of her evidence, if accepted, therefore tended to contradict that of patient A. I also note that the GMC was itself aware of the witness and her evidence. This was not a witness who would be sprung on the GMC out of the blue. The Appellant had sent a copy of the transcript of her evidence well before the 24th June. As I was also informed, the GMC had her witness statement from the outset. That being so, it is perhaps surprising that, as a responsible prosecuting authority, the GMC had not itself called so obviously relevant a witness, not least when her evidence tended to show that the patient’s account was incorrect in a number of respects. But Mr Hare made a strong point when he pointed out that the Appellant could have called her, and it is one to which I add considerable weight.

[107]The emphasis placed by the Panel on the CCTV film, and its particular way of looking at what occurred after the 19 minute phase is important. It said that it “(attached) particular weight to its findings regarding the CCTV evidence.” I refer also to the conclusions on the risk of discovery. The evidence of the HCA, if accepted, tended to show that some significant parts of their conclusions were in error, and that i) the physical examination, or at least some part of it, took place later; ii) when it did so, it involved the examination of the abdomen above the area of the private parts, above the patient’s trouser line; iii) the patient’s private parts were not exposed; iv) he was examining her as the HCA entered, and did not conceal what he was doing.

[108]That being so in my judgment it would have been obvious to the Panel, had they considered it, that their conclusions, which relied so heavily on the timings as shown on the CCTV, were at the very least open to question if her evidence was accepted. The fact is that the Panel then proceeded to consider impairment when there was admissible evidence, provided by the Appellant to the MPTS, which, if accepted, tended to show that some of the reasons for their preference of the evidence of the patient were called into question.

[109]As to the need to recall witnesses, that would have been a matter for the Panel. I accept that the patient may have had to be recalled to deal with the matters raised by this evidence. But the time taken up by the new evidence and any rebuttal need not have taken more than a day.

[110]As to Mr Hare’s argument that the cases had been closed and final submissions had been made, I reject the idea that that prevents evidence being called. Even in criminal cases it has long been accepted that in a proper case, evidence may be called after final submissions have been made (e.g. Sanderson

[1953] 1 WLR 392

, Ludwick [1977] Crim LR 210, Andrew

[2005] EWCA Crim 3143

). Given the fact that a discretion exists in judges in the civil courts to reconsider their conclusions even after a judgment has been delivered (as set out above) I do not regard this as a persuasive point.

[111]If not dealt with by the same Panel, then it is of course true that it could result in a rehearing of the allegations before a different Panel altogether, which would involve the recalling of witnesses, including the patient. That would involve a hearing potentially as long as its predecessor. But that would not have been a relevant consideration for this Panel at the time.

[112]I turn lastly to the final, and most important question. Would justice have been done if the evidence were not received and heard ? It seems to me that there are four matters of particular importance; i) the HCA was always an obvious witness, the relevance of whose evidence cannot seriously be doubted; ii) her evidence tends to suggest that the account of the patient of this incident is untrue or unreliable in some important respects; iii) her evidence, if accepted, significantly undermined the approach of the Panel to a matter which it regarded as very important; iv) this case relates to the ability of a highly trained professional to be able to practise medicine, not merely to his own, but to society’s benefit (following the approach of Smith LJ).

[113]It is true of course that the evidence can shed no light on some aspects of the behaviour complained of, such as the absence of a chaperone, and the taking of the telephone numbers, but it was directly relevant to the allegations of physical sexual conduct on the Appellant’s part. That was a weighty reason in its mind to conclude that his sexual misconduct had impaired his fitness to practise. It follows that the evidence in question, if accepted, had the potential to go to the heart of the central factual issues before the Panel, and the effects of the factual findings it made on the later conclusion of impairment, and on the choice of sanction.

[114]Weighing all of these matters up, I consider that notwithstanding the fact that the Appellant’s advocate had not called the HCA to give evidence, this is a case where the potential for conflict between the Panel’s findings and the evidence of the witness in question was such that there would have been a real risk of injustice if the Panel had refused to permit the calling of the evidence. That conflict, and the potential for injustice, only became apparent on receipt of the provisional findings. The Panel acted on the legally erroneous assumption, in part because of the submissions made to it, and the advice it received, that it had announced his decision, and thus had no discretion to receive the evidence. It follows that I cannot conclude that a properly directed Panel would have decided not to allow the evidence to be called pursuant to the Appellant’s application to it.

[115]That being so, I must then ask: if the evidence had been admitted, could it have made a difference to the outcome? Given the emphasis placed on the CCTV and the view of the Panel about what happened at what stage so far as the examination is concerned, I cannot conclude that it could have made no difference. I have also concluded that the refusal of the Panel to admit the evidence has caused a real risk of injustice.

[116]In the case of the other witness B, I do not take the same view. It is his recollection of an account by his former girlfriend, and really adds not very much. If there is a rehearing, it will of course be admissible should a party wish to call him.

[117]I have therefore come to the conclusion that this ground is made out so far as the evidence of the HCA is concerned.

[118]I would have reached the same conclusion had I considered it as an issue of whether I should quash the decision on the basis that the new evidence had emerged. Under normal circumstances, I would not have done so where a witness has not been called by a party represented by solicitors and counsel, but there are four matters which persuade me that I should; i) the reasoning given by the Panel for its decision places an emphasis on a claimed inconsistency between the Appellant’s account of when the physical examination occurred and what was shown by the CCTV, which the evidence of the HCA, if accepted, cast great doubt upon; ii) the account it found proved of the physical examination conflicts with the description given by the HCA; iii) this is not a case where the request that the Panel should hear more evidence was made after the end of the stage dealing with determining whether there had been misconduct; iv) the refusal by the Panel (based of course upon submissions made to it by counsel for the GMC, and advice from the assessor) to even consider whether the evidence should be admitted leaves a real sense that justice was not done. (13). Grounds 1, 2 and 4

[119]As to the first or second grounds, they were argued on the basis of the decision as it was, which was reached without the HCA’s evidence being heard. Mr Geering took me through the various inconsistencies in Patient A’s evidence. He also referred to the difference between what she said and what was on the CCTV. He also argued that there was expert evidence available which showed none of the Appellant’s DNA being found in and around the patient’s private parts, which Mr Geering said would have happened had he examined her without gloves. He also criticised the panel for concluding that the patient had no credible reason for making up the allegation. On the second ground, he submitted that the Panel’s stated reasons for accepting the patient’s evidence were inadequate.

[120]I have no doubt whatever that the conclusions reached were open to the Panel on the evidence which it heard. The first ground, insofar as it relates to the conclusions concerning the CCTV evidence, adds nothing to the third ground. As to the argument that the DNA evidence supported the Appellant, it is misconceived. The expert evidence is explicit that it is inconclusive on the issue of whether he did not touch her private parts with his ungloved hand, or whether he did so but left no recoverable DNA. It cannot be used to support either case. The second also adds nothing to the third ground.

[121]As to the fourth ground, there is nothing in the transcripts of the hearings before the court which gives any real support to this ground. I accept that the Chair of the Panel may have been a trifle over hasty in the way in which she dealt with the matter, but the allegation relies on the double hearsay of what the Appellant says he was told by counsel what she had been told by a member of the Panel, and there was obvious scope for misunderstanding. While the approach of the Chair to this issue was a little brusque, there is no material on which I would be entitled to uphold this ground.

[122]I therefore reject Ground 4, and express no view on Grounds 1 and 2, save on the question of the DNA evidence, and save to say that on the evidence the Panel heard, the points of criticism taken do not call the conclusions of the panel into question. I uphold Ground 3, which succeeds. (14). Orders to be made and conclusion

[123]The question then arises of the relief which should be granted. Had this matter related only to the sanction involved, I would have considered remitting it to the same Panel to admit and consider the evidence. I have also given weight to the fact that a rehearing before another Panel will almost inevitably involve the patient having to give evidence again, which is to be regretted. It could involve her having to be recalled, even if it is not heard by a new Panel. But if the matter is remitted to the same Panel it will require a substantial reconsideration of its approach to the evidence, in circumstances when it had followed up the findings on impairment with a clearly expressed rejection of the Appellant’s mitigation, and a view of his conduct which was condemnatory. That is not to criticise the Panel: on the findings it had made, which did not address that evidence, it was entirely justified. But if the factual conclusions on misconduct are to be reconsidered, it is in my view strongly desirable in the interests of justice being seen to be done that it be determined by a new Panel whose members have not dealt with the matter before.

[124]I therefore, in accordance with section 40(7)(b) and (d) of MA 1983 direct that i) the direction of erasure be quashed ii) the case be remitted to the Registrar for him/her to refer it to a new Fitness to Practise Panel for rehearing.

[125]I emphasise in the strongest terms that nothing in this judgment is to be taken as expressing any view on the resolution of the issues raised by all of the evidence when it is put before the new Panel and heard by it.

[126]Having decided that that decision must be quashed. I therefore direct that the Appellant be referred to in the title of this action as TZ, given the nature of the allegations against him. Other applications

[127]In the usual way, I sent my draft judgment to Counsel for comment. I received comments from both Counsel, many of which I have acted upon, and for which I am grateful. I have made some other minor alterations. I also invited any application for permission to appeal to be submitted in writing. I have received none. However I did receive an application for costs by the Appellant, and submissions from Counsel for both the Appellant and Respondent.

[128]On the question of costs, the Appellant seeks costs in the sum of £ 4091.50. The Respondent seeks to resist the claim for costs on the following grounds i) The Appellant did not succeed on Ground 4. He succeeded on Ground 3, but not on the basis of the case as it had been argued. He did not fail on Grounds 1 and 2, but the court thought them misconceived; ii) The GMC had had to respond to the original much more extensive grounds of appeal; iii) The skeleton argument of the Appellant was late, and reference is made to CPR PD52A 5.1(5)(b); iv) He should not get the costs of preparing his skeleton and only one quarter of his other costs.

[129]As a general rule (CPR 44.2(3)), the successful party should receive his costs. I have considered the Respondent’s arguments. I reject those submissions, for the following reasons; i) The amount of costs claimed is reasonable, and proportionate to the subject matter of the appeal. ii) Ground 4 took up very little time at the hearing. It was a narrow discrete point. The Appellant won on Ground 3. Grounds 1 and 2 could not succeed if he failed on Ground 3, but the inconsistencies there set out (apart from the DNA issue) went to the issue of whether the evidence of the HCA should have been admitted. If that evidence had been admitted, the conclusions challenged by Grounds 1 and 2 (the DNA matter apart) would have had to be addressed in the light of all the evidence then before the Panel. iii) The central problem was that the Panel, urged on by counsel for the GMC at the hearing, adopted an approach to Rule 17 and to the reception of other evidence before its factual decision was announced that was unsupportable, and never considered the application made to the Panel on its merits. The Appellant won on the central issue in the case. As I made plain in my judgment, the Appellant would also have won had it been approached as per the pleaded Ground 3. iv) There is nothing unusual about grounds being pared and condensed as one approaches the date of the hearing. Mr Hare’s skeleton for the Respondent was very little longer than it would have been had the editing taken place earlier. v) Mr Geering’s skeleton was late, but, as he submits, that had everything to do with the problems the Appellant had in securing representation through the Bar Pro Bono Unit. If the time limit had been complied with, the GMC would still have had to deal with a skeleton. I find it hard to see how it has suffered any real prejudice at all. I therefore direct that the fee for preparation of the skeleton is allowed. vi) The fact is that the Appellant challenged the core factual findings of the panel, relying on apparently truthful evidence from an obviously relevant witness whom the GMC could have called but did not. The Appellant brought it to the attention of the Panel at a time when it had the power to consider receiving it, but, in reliance on the misconceived submissions of Counsel for the GMC, and on the similarly flawed advice of its assessor, it never addressed the issue properly. Despite the obvious difficulties in defending what occurred, the GMC fought the appeal to the end, relying on a highly improbable and strained interpretation of the FTP Rules. It could have avoided a great deal of expense by addressing the matter at an early stage. It would be quite unjust if the successful Appellant were not to get the whole of the very modest costs he has claimed.

[130]I therefore order that the Respondent must pay the Appellant costs in the sum of £4091.50 within 28 days.

TZ v General Medical Council [2015] EWHC 1001 (Admin)

(i) Argument

Q. You think he felt the tummy?

Cited in 3 later judgments