Bale v The General Medical Council [2017] EWHC 804 (Admin)

Case No CO/4290/2016[2017] EWHC 804 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 15 March 2017
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE COLLINS
Between
BALEAppellantv
Between
THE GENERAL MEDICAL COUNCILRespondent
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedTrading as DTI8th Floor, 165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Peter-John White (instructed by Scott Moncrieff) appeared for AppellantSharon Beattie (instructed by GMC Legal) appeared for Respondent
J U D G M E N T (Approved)
[1]MR JUSTICE COLLINS: Dr Bale, the appellant, appeals against the decision of the Medical Practitioners Tribunal, given on 20 July 2016, in which a number of heads of charge were proved against him. The result was that he was made subject to a suspension for a period of 9 months.[2]The matters arose from two consultations that he held when he was training to be a general practitioner in March 2013. He has since then decided that he will not proceed with becoming a general practitioner and qualifying as such, but he has gone back to his specialty. I should say that there is no indication that before these events or since them he has in any way behaved in a manner which would be contrary to good practice as a doctor; indeed, there is no suggestion that he is other than a competent practitioner.[3]The events relied on involved consultations with two separate female patients. One, known as "Patient A", took place on 13 March 2013, and the other with "Patient B" on 26 March. In both, the patients alleged that he appeared to become somewhat irate, raised his voice and required effectively that, when they wanted to leave and not to continue with the consultation, that they should not do so. That he desired that they should not leave was consistent with his view that they did need either appropriate advice or treatment as a result of the matters which had led them to come to see their doctor in the first place.[4]In relation to Patient A, it essentially did not go beyond his allegedly raising his voice at her and getting up when she was leaving the room and trying to persuade her not to leave, and thereafter on one occasion telephoning her, but effectively no more than that. In relation to Patient B, the allegations were far more serious, in as much as she also alleged that he raised his voice at her. Each of the witnesses used the word "shout", but of course the distinction between that and raising voice is often difficult to specify precisely. However, he appeared, as I say, to become irate. So far as Patient B was concerned, she alleged that, as she was leaving the consultation room, he followed her. She could not shut the door behind her because by then his body was in the way, and he grabbed hold of her arm. She alleged that he tried on at least one, and in another statement two occasions, forcibly to drag her back into the consultation room. This constituted an assault. She made a complaint of that shortly after she had left the surgery, and, in the result, the two complaints were married up.[5]There was a police investigation and the appellant found himself charged with two offences in the end: one of assault in relation to Patient A, the other of assault and beat in relation to Patient B. "Beat" is somewhat misleading, because there was not any question of beating in the usual sense of that word, but that simply reflects the offence of battery which involves any touching of an individual without proper authority or reasonable cause and with hostile intent.[6]I will come to the details so far as material shortly, but before the magistrates he was acquitted of the offence in relation to Patient A. I am bound to say, it is difficult to see how it could reasonably have been believed that he was guilty of any assault in the circumstances of that case. But he was convicted of the offence charged in relation to Patient B.[7]He appealed against that and his appeal was allowed, but the circumstances were such that the Crown Court judge in giving his reasons decided that contrary to his case, which had always been that he did not touch Patient B let alone grab her by her arm and attempt to pull her back into the consultation room, the court decided that he did in fact grab hold of her arm but that that did not, in the circumstances, amount to an assault, because, as the judge decided, what was needed was a hostile intent, and there was no such intent. Indeed, it was apparent that what he was concerned with was that she should not leave because she needed further discussion and possible treatment of her condition.[8]The circuit judge sitting at Burnley Crown Court on three occasions in the course of his reasons referred to the appellant as having told lies, in that he had, in the court’s view, wrongly asserted that he had never even touched the patient. Of course, there was no need for the judge to have specifically found that he had told lies; all that he needed to do was to indicate that the court accepted the evidence to the extent that it was established in their view that he had taken hold of Patient B by her arm. I should of course say, as is perhaps clear, that they did not accept the additional evidence from Patient B that he had attempted to drag her back into the consultation room or that she had suffered injury as a result of what he had done, which is what she had alleged. Indeed, I am told that she obtained in due course compensation in relation to the alleged injuries. In fact on medical evidence which was available to the panel from which this appeal is brought there was no evidence that she had suffered any injury as a result of what had happened in the consultation or following the consultation with Dr Bale. The way that the judge put it was this:
"It seems to us that if in those circumstances he unprofessionally, amateurishly, unadvisedly took hold of her arm for a brief period of time but did it because he really wanted to give further medical help and assistance to her, that does not cross the threshold of hostile intent for the purposes of a section 39 assault."
He then went on to say that they found that he had not been honest, but that was not a matter for them. They then referred to the standard lies direction which applies in all criminal cases.[9]The lack of hostile intent that the judge found was based clearly upon acceptance that what he wanted to do was to give further medical help and assistance to Patient B, but he did it in a way which was not satisfactory.[10]The matter was then brought before the Practitioners Tribunal. The hearing in the Crown Court was in April 2014, so some 12 months or so after the events in question. The hearing before the Tribunal took place over some 15 days and was concluded in July 2016, so some further two years had passed before the appellant then gave his evidence. Right from the outset it had been his case that he had not laid a hand on Patient B. He had certainly - there was no issue about this - tried to persuade her not to leave the consultation room, and when she was going out of it he had got up and gone behind her in order to try to persuade her that she should come back because she needed treatment. The way that this was dealt with, because it is important to look at the salient parts of the evidence, by the Tribunal in their determination in relation to her evidence was put this way at paragraph 28 of the record of their decision on impairment:
"The Tribunal next considered Patient B who gave oral evidence. It noted that Patient B benefited financially following her alleged altercation with you. The Tribunal does have considerable reservations regarding the evidence of both Patient B and her husband, particularly in relation to the timing of her telephone call to the police. Also the evidence of her attendance at A&E the following morning. However, in one very important respect Patient B's evidence is corroborated by the evidence of Miss Kirsty Keys. The Tribunal heard oral evidence from Miss Keys and found her to be an honest, helpful, and credible witness, with no agenda other than to assist at this hearing. In these circumstances, the Tribunal accepted Patient B's evidence only where it was corroborated by Miss Keys. The Tribunal is not satisfied that Patient B sustained any injury in this incident."
[11]It follows from that that the Tribunal recognised that Patient B had not told the truth in relation to a number of matters, not least the question as to whether the appellant had grabbed hold of her arm and pulled her with a view to trying to make her re-enter the consultation room forcibly. Further she had not suffered any injury.[12]So far as the telephone point is concerned, it seems that there was a CCTV camera at the surgery and this showed her leaving the surgery at 6.50 pm on the relevant day. It is known that she telephoned the police at 6.52, and that must have been from the car which her husband was driving because her husband was waiting for her in the car park. Indeed, following what had happened, whatever it was, in the consultation with the appellant, Patient B had been seen by another doctor (referred to as "Dr C") and had had a short consultation with him which appears to have taken place between about 6.40 and 6.50. There was no question but that she appeared to be upset at whatever had happened, and if it were the case that the appellant had appeared to become irate with her which led to her not wanting to continue the consultation with him, and had then tried to persuade her to return, it is perhaps not altogether strange that she might have become upset as a result; not because he had necessarily done anything active but because, rightly or wrongly, she may have thought that he might have done. In any event, the CCTV camera apparently showed that she was displaying no signs of distress when she left the surgery. It seems that Dr C also left either with or immediately following her and spoke a few words with her husband, no doubt explaining what had happened so far as he was aware. Her evidence was that she did not telephone the police until she got home. That cannot be right in the light of the timing to which I have already referred. The extent to which that casts doubt upon her evidence is perhaps less clear, but it does show that her evidence had to be treated with considerable care, particularly when one adds that to the other matters that she was alleging which were properly rejected by the Tribunal.[13]So far as Kirsty Keys is concerned, she was a cleaner at the surgery. Her evidence was that she heard, or her attention was drawn to what she variously described as a cry or a scream, but she did not see anything actually being done between the appellant and Patient B, albeit that is perhaps a little odd in as much as they were visible because they were outside the consultation room and it was Patient B's case that the appellant had laid his hand on her and grabbed her when she was indeed outside the room. However, Miss Keys said that she heard her saying words to this effect, namely "Get off me, don't touch me".[14]So far as Dr C is concerned, he understandably asked the appellant to tell him what had happened. He says that he came out of the consultation room that he had been in (which I think was next door to the appellant's) because he had heard a noise, again some sort of shouting or something which suggested to him that there might be someone in trouble. In any event, he spoke to the appellant and he noted, because it was in the notes that he made having had his consultation with Patient B:
"Spoke to Dr Bale regarding the incident, says was unhappy with his advice and was trying to walk away. He however tried to stop her from leaving as she was trying to walk away but denies having any intention to hurt her."
[15]What the Tribunal decided was that they were satisfied that the appellant had not given accurate evidence, in as much as he had taken told of Patient B. They justified this on the basis of the words that I have already referred to, namely "Get off me, don't touch me", and Dr C's stating that he stated that he tried to stop her from leaving as she was trying to walk away but denied having any intention to hurt her. It is said that those matters were consistent, and effectively consistent only, with his having taken hold of her.[16]That does not, in my view, at all follow. The words "Get off me, don't touch me" are entirely consistent equally with her concern that he was going to try to prevent her from leaving; it does not necessarily mean that he had already got hold of her. Of course it might be that, but to say that it was a conclusion which, when one is bearing in mind the effect of the finding, is one which meant that Patient B's account should be upheld is not, in my view, at all reasonable.[17]In so far as "denies having any intention to hurt her", this may well have resulted from the fact that it was her case that she had been hurt. Apparently she was alleging that she had a red mark on her arm which no independent person apparently ever saw. If that is what she had told Dr C, as one suspects it must have been, it is not surprising that, when that was put to the appellant, he made that denial. Again, that does not, in my view, in any way support the conclusion that he must have grabbed hold of her. However, the Tribunal did decide that he had taken hold of her. That, of course, was consistent with the view formed by the circuit judge and the magistrates who heard the appeal.[18]There was an application made at the outset to admit the comments of the circuit judge in relation to the findings generally, but particularly the finding of dishonesty. That was resisted. So far as admissibility was concerned, there can be no question but that that type of evidence can be admitted, and there are cases which show that there are circumstances in which it is proper for a decision of a judge or another tribunal reaching findings of fact which are material for the purposes of a subsequent hearing can be admitted. There was an argument that this should not be admitted because it was an unnecessary part of the decision-making by the judge and it was highly prejudicial to the appellant if admitted.[19]The borderline between admission and non-admission on the basis of fairness is never an easy one to draw, particularly in circumstances relating to material such as arose in this case. It was an issue which the Tribunal had to decide for itself, and there is always a risk, it has to be borne in mind, of admitting that sort of material which effectively covers the very issue that the Tribunal must decide for itself on the basis of such evidence as is before it. But in reaching their conclusion, the Tribunal said in terms that they attached no weight to the observations of the judge. There is no reason for me to reject that, and I entirely accept that the Tribunal did decide for itself on the evidence that was before it whether the appellant had indeed touched or taken hold of (which was the relevant finding) Patient B's arm.[20]In those circumstances, it seems to me that it really does not help the appellant for me to have to decide whether in all the circumstances that material ought to have been admitted. Certainly, as I say, in the light of the authorities, to which I need not refer in any detail, there is some difficulty in the submission that there was an error in all the circumstances, even in admitting that material, because in the end it played no part in the final conclusion of the Tribunal. I appreciate the concern that it might subconsciously have influenced them, but it does not seem to me necessary to go into that because of the view that I have formed in any event that the dishonesty findings were not justified.[21]The dishonesty findings resulted from the Tribunal's decision that right from the outset he had denied that he had touched in any way Patient B. They took the view that it was dishonest to have denied from the outset that he had done what the Tribunal decided he had done. In addition, there was the question of whether he had deliberately told lies to the criminal court. If he had, and if that was established, there was not any need to go into questions of dishonesty because to commit perjury, which is what that would have been, on any view is as bad as dishonesty in so far as it means that a doctor has not measured up to the standards that are appropriate and has brought the profession into disrepute if nothing is done to show that that is unacceptable conduct.[22]It is interesting to note that the Tribunal took the view that, albeit it was said he gave false evidence in the criminal proceedings, it was satisfied having heard his evidence before it and submissions that since 2014 he had convinced himself so that he now genuinely and honestly but mistakenly believed that he had not touched Patient B. Quite why the distinction should have been drawn between 2014 and 2016 is entirely unclear. It is certainly clear that at all times the appellant had denied any touching and certainly and properly had denied any hostile touching so far as Patient B was concerned. Of course, if a Tribunal on the facts concludes that something which is denied has taken place, then the question arises as to what should follow from that. There are often factual disputes which may be resolved against a doctor. The Tribunal must be very careful in such circumstances not to regard that as in any way necessarily indicative of dishonesty, because otherwise any denial which was, in the view of the Tribunal in due course, not substantiated could on one view indicate dishonesty.[23]The Tribunal had regard to, as is standard in these cases, the direction as to dishonesty that is set out in R v Ghosh. The test, as the Tribunal recorded it appropriately, was as follows:
"The Tribunal heard that it should apply both an objective and a subjective test. The objective test is whether your conduct, at the time, would be considered dishonest by the ordinary standards of reasonable and honest people. The subjective test is whether you realised, at the time, that your conduct would be considered dishonest by the ordinary standards of reasonable and honest people."
[24]There is the twofold test, and the subjective test one has to be a little careful with because one person's view as to what is appropriate is not necessarily another's. (I think in Ghosh there was reference to the Robin Hood test. One can see the point.) The Tribunal recognised, and indeed stated, that it may be that the denial was motivated by the appellant's concern having regard to his knowledge of how the police acted in Nigeria and having some distrust of the police that, if he did admit anything which involved physical touching, he would find himself in difficulties. Because he was clear (and this was upheld in due course) that, if he did touch her, he certainly did not use any force against her and he had no intention of doing other than seeking to persuade her that she should not conclude the consultation.[25]I have the strongest of doubts as to whether that denial in the circumstances, assuming always that it was not factually correct, because I appreciate the Tribunal found against him, but the basis as I have gone through of that finding was, in my judgment, slight could be regarded as dishonest. Nonetheless, that particularly is the case because Patient B was clearly unreliable in important respects, as again the Tribunal properly decided. I, as I say, have the strongest of doubts as to whether such conduct can properly be described as dishonest. They married dishonesty into what he said before the criminal courts. Again, since he was clear that he had done, in his view, nothing wrong, and if there was any physical contact it was no more than perhaps a touching (although he did not go as far even as to admit that), it would be wrong to have regarded that as in any way tantamount to perjury. Again, there is the problem as to when on the Tribunal's view he had convinced himself, and so was acting entirely honestly in giving the evidence that he did. The reality is, one suspects, it would not have taken long, if indeed that was an appropriate way of looking at it.[26]It follows from that all that I have said that, in my judgment, the Tribunal was indeed wrong to find that what he had done was dishonest or that he had committed perjury before the criminal courts.[27]That is not, of course, the end of the matter, because in relation to Patient A, in whose case there was no question of assault, the allegation essentially was that she raised matters, or sought to raise matters, which were not covered by the consultation and he got, she said, cross with her, effectively saying that he had other patients to see and that it was his view that she was beginning to waste his time. She got upset by this, went to leave and he endeavoured to prevent her, she said, although that aspect was not proved before the Tribunal, save that in the reception area he did ask her to go back inside. That head of charge was found against him. Whether in reality that was inappropriate I am far from sure, but in the light of the whole which they found established it seems to me that it is difficult to say that their conclusion, having regard to the standards in the GMP that patients must be treated politely and considerately and they must be working in partnership with patients, that the appellant had not behaved in a way which was in conformity with that.[28]To be fair, part of the trouble was that he was a trainee. He was faced with two rather difficult patients in both A and B. He did not deal with the matter in the way which he should have done looking at it now with hindsight, and I think he accepts that and indeed recognises that that was the position. There is equally little doubt that each of the patients was upset by the treatment that they felt that they had received. In so far as what Patient B alleges, namely raising the voice and so on which is consistent with what Patient A said, again I do not think I can say that the Tribunal was wrong in concluding as it did.[29]When one looks at their overall finding of misconduct, they marry in everything, including the question of dishonesty. Nevertheless, as they say in relation to the finding of misconduct:
"13. The Tribunal considers that your behaviour towards both patients fell below the standards expected of a medical practitioner as set out in GMP. In particular it noted the following paragraphs: '1. Patients need good doctors. Good doctors make the care of their patients their first concern: they are competent, keep their knowledge and skills up to date, establish and maintain good relationships with patients and colleagues, are honest and trustworthy, and act with integrity and within the law. 21. To fulfil your role in the doctor-patient partnership you must: (a) be polite, considerate and honest (b) treat patients with dignity (c) treat each patient as an individual…'."
[30]Obviously dishonesty falls outside that, but independently of dishonesty the way in which Dr Bale dealt with each of his patients did fall below the standard which was to be expected. Whether without the dishonesty they would have found it to have been serious may well be difficult to decide. But as I say, undoubtedly they were entitled, in my view, to conclude as they did independently of the alleged assault on Patient B and to decide that the way in which the consultations were carried out did fall below the high standards to be expected.[31]I should say that Dr Bale now clearly recognises that and accepts that things did not go as they should. So there is no question but that he has insight, in so far as that matters, and these two events being isolated it seems to me that, even if the Tribunal had decided on those alone, it is unlikely that they would have regarded it as meriting any sanction. Whether they would have regarded it as serious I cannot be sure.[32]However, the fact is that, because it was decided that the suspension should take effect immediately, the appellant has now served some 8 months of a suspension. In those circumstances, it seems to me it would be quite wrong for this matter to be yet further extended and that he be put through the added anxiety of reconsideration as to what, if any, sanction (assuming serious misconduct were found without the dishonesty finding) would be appropriate. As I say, in the knowledge that he has already served the suspension, nothing, in my view, would be achieved by that.[33]Accordingly, what I propose to do is to allow this appeal, to indicate clearly that what I have decided in my judgment will be a matter of public record, but that it is not necessary to send the matter back for any rehearing. Simply to say that, if it were appropriate to find serious professional misconduct from what remains of the manner in which the appellant dealt with the two patients, in the circumstances of this case, having regard in particular to the suspension that he has already served, it would be wrong to do other than to take no action against him, which is what the Tribunal would be able to do if it decided that there were exceptional circumstances.[34]Accordingly, I think all I need do is simply to say the appeal is allowed.[35]MS BEATTIE: Yes, on the basis identified.

MR JUSTICE COLLINS: Yes.

[37]MR WHITE: My Lord, that leaves only the matter of the costs of the appeal.

MR JUSTICE COLLINS: Yes, well, Ms Beattie, you cannot, I think, resist an order for costs, can you?

[39]MS BEATTIE: No.

MR JUSTICE COLLINS: You have the schedules, have you?

[41]MS BEATTIE: I think I have, but in relation to them also there was an issue of costs which is outstanding which was resolved in the respondent's favour which are still outstanding.

MR JUSTICE COLLINS: Which costs are those?

[43]MR WHITE: There was an application earlier, my Lord, for leave to issue witness summonses and to admit further evidence. That came before Jeremy Baker J on 2 February and was dismissed with costs.

MR JUSTICE COLLINS: What order did he make?

[45]MR WHITE: He assessed costs summarily.

MR JUSTICE COLLINS: I do not need to concern myself with those.

[47]MR WHITE: No. But the point my learned friend is making is that as I understand it (Inaudible) has not yet paid those costs. Has your Lordship receive the schedule?[48]MR JUSTICE COLLINS: I am not sure I have seen schedules, have I? I have seen an awful lot. (Pause). Yes, I do have costs schedules. I have the applicant's schedule, which totals £11,586. Is that the right one?[49]MR WHITE: That is the one, yes.

MR JUSTICE COLLINS: That is against the other side's of --

[51]MS BEATTIE: Exactly. There is a substantial difference.

MR JUSTICE COLLINS: Quite a lot of difference.

[53]MS BEATTIE: I think about 50 per cent difference.[54]MR WHITE: My Lord, I accept the figures are slightly different. They are solicitors based in London.[55]MR JUSTICE COLLINS: Yes. I think one can say that if there is to be a difference to be justified that sometimes, because an appellant has the (Inaudible). On the other hand, the documents essentially were those provided by the Tribunal, were they not, in this case?[56]MR WHITE: They were eventually provided by both sides.[57]MR JUSTICE COLLINS: Yes. For some reason, which seems an unnecessary duplication.[58]MS BEATTIE: Can I just also assist in relation to the schedule of work done on the documents. There is a claim for £2,500 for the bundles prepared by the appellant, which of course ultimately were prepared by the respondent and not required. Put it like this: in respect of there being, if your Lordship will be considering the costs if the respondent had been successful, I would not have been inviting you to consider the costs of the bundles because we did them.[59]MR JUSTICE COLLINS: Yes. What were you claiming for the costs of the bundles? Or were you not?[60]MS BEATTIE: Certainly I think it may have been in the original statement, but I do not think we would have assumed that, given the fact that it was the GMC's --[61]MR JUSTICE COLLINS: Yes. The work done on documents you claim, Ms Beattie, is only some £630, I think.[62]MS BEATTIE: Yes. I think that may have been a discounted figure. But again, it is just a comparator of the fact, as I say, that there are £2,500 claimed for bundles that ultimately were not used.

MR JUSTICE COLLINS: The appellant's work done on documents, £3,975; £2,500 bundles.

[64]MS BEATTIE: I think it was because it was charged out at £250 for a solicitor to prepare them. In fact the reason for the difference is that the GMC's is done by a member of the administrative staff. So it would seem to be charged out, the bundles have been prepared at the rate of £250 per hour, as I understand it, because there is 10 hours claimed and £2,500.[65]MR JUSTICE COLLINS: Rather a lot. I must confess, Mr White, I am afraid I am inclined to deduct that. That brings it down to about £9,000, does it not? Just over £9,000.[66]MR WHITE: Yes.[67]MS BEATTIE: I think also in respect of another perhaps factor is that the costs of the interim appeal in relation to seeking orders from Nokia(?) amount to £1,718, which were to be paid within 14 days, I believe. That was 2 February.

MR JUSTICE COLLINS: That was to be paid by?

[69]MS BEATTIE: In favour of the respondent. So in the application --

MR JUSTICE COLLINS: Have they been paid?

[71]MR WHITE: No.

MR JUSTICE COLLINS: Well, in that case we can deduct those as well, if they have not been paid.

[73]MR WHITE: Set them off against each other

MR JUSTICE COLLINS: One would subsume that order in this.

[75]MS BEATTIE: That figure was £1,718.20.

MR JUSTICE COLLINS: I do not think we need to worry about the 20 pence.

[77]MS BEATTIE: No, I only give it for accuracy.

MR JUSTICE COLLINS: So that brings it down from £9,086 to £7,368.

[79]MR WHITE: Yes.[80]MR JUSTICE COLLINS: Which as it happens is about the same as yours. Well, I think on the face of it that sounds like a reasonable sum for me to order.[81]MS BEATTIE: Thank you.[82]MR JUSTICE COLLINS: In that case, rather than have any further expense incurred with detailed assessments, I am happy to make the order that the order for costs will be £7,368.[83]MS BEATTIE: Thank you very much, my Lord.[84]MR WHITE: And that is on the basis that that sets --[85]MR JUSTICE COLLINS: That means that the interlocutory order need not now be regarded as effective. That, as it were, includes that.[86]MS BEATTIE: Yes. Thank you.

MR JUSTICE COLLINS: Thank you both.