“I kind of just blurted out that, ‘He’s just touched my breast.’”
“DR MITCHELL: I just wondered if I could ask you, firstly, picking up on what my colleague was saying, you used the term ‘mirroring’ the two hands together mirroring one another, moving up your body. A Yes. Q You were lying flat at the time on the couch. A Yes. Q It’s truly quite awkward, isn’t it, if you are lying on that hand, for the hand to be moving up. How did that happen? A Sorry, it wasn’t a smooth movement, which is why I described it as sort of a massage movement, because his hands were having to move in order to get up the body.”
“We agree, based on our experience of carrying out ultrasound examination of patients prone on an ultrasound couch, that it is physically difficult, but not impossible, to insert the examiner’s hand and forearm underneath the chest of a patient lying face down.”
“Q The weight of her upon − the pressure upon that couch would have increased, wouldn’t it, if any palpation or pressure was put upon the spine by the clinician? A Yes. Q You agree? A Yes. Q That would have had the impact of pushing her more into it? A Yes. Q Do you accept that it would be quite difficult in those circumstances for any human, or any doctor, to put their hand underneath the torso of that patient as they were pushed into the couch? A I and Dr McNally agree on this point that it’s difficult, almost impossible. We did agree.”
“Q Finally, Dr McNally, for my purposes, the last matter I touched upon with Dr Emberton was the unlikelihood of a clinician being able to put their hand and freely move it around underneath the body of a patient who’s face down on a couch being manipulated and pressured from move. Do you maintain the observations within the joint report and, indeed, in your report to that extent? To that matter? A Yes, I think that would be extremely difficult without a lot of discomfort. Q Why in your view do you say ‘extremely difficult’? A Well, I know from trying to assist patients who are in some way disabled, trying to help them up or around an ultrasound examination couch, that there is very limited ability to get your hand underneath without some assistance from the patient if they’re able to give it. It’s a very − well it’s a closed space essentially and if you were to force your hand in it would be very uncomfortable for the patient. I don’t think it would be very easy to move your hand around once you’d managed to achieve even getting your hand in in the first place. I just − it’s a very tight space and it would be uncomfortable if not painful for the patient.”
“Now, I showed on the spine when you are pressing it’s literally a good pressure because spine is a deep, and you have to press it hard, and it puts a pressure on the patient. If patient is not looking or anything, patient might think that someone is pressing on her, and that can be a misbelief.”
“Q So could it be that when you were in the chest area, your fingers might have been curved around? Is that possible? A Miss, you know, everything is possible. But you know, it’s like this much, like yes, it can be physically possible, but I don’t remember intentionally honestly doing that, or anything like that. Q Okay. So it is possible that your fingers, while you were examining the back, might have strayed around the side of her body? A Miss, I honestly don’t recall that. But if you’re saying, like, every one’s patient, every patient and everyone’s patient, and how they lie down is different. Q Yes. A So when you are going, you can touch. Honestly, breast covers from here, to here, to back, like trapezius. So you can anatomically say I can be on the breast. I’m not denying that, but that’s like here. Q Yes. A It’s not like from front.”
“She forgets entire conversations about her clothing. For instance, she forgets that it was she who had asked the doctor to undo her clothes and do them up again at the end. She misinterprets his palpating of her spine for an extensive back massage. She imagines his hands going under her body. She wrongly feels one hand on her back moving in parallel with the hand underneath. She thinks his left hand touches her breast twice, when in fact it is nowhere near her breast at all. She says in that statement she told him his hand was on her breast but either has misremembered that or said it so quietly that it wasn’t heard by the doctor. Finally, she misremembers mishears or misunderstands his comment about nipple piercing when they are alone filling out the MRI form.”
“It is not about someone lying or someone telling the truth. It is about whether someone could be genuinely mistaken. Has Patient A made a mistake when she alleges that Dr Sankaye touched her breast on two occasions by placing his hand under her chest as she described? It was never suggested by the doctor, notwithstanding repeated questions and invitations, to speculate or comment, which ultimately drew an objection from myself, but it was never suggested by the doctor that this was a manifest lie. It was always his case that this is one of a mistake.”
“Don’t speculate. Would she have arched her back to have given access the second time? That’s not speculation. Her evidence is she was lying prone. There is no suggestion in the evidence that she raised her back at all. In the absence of that, it is not possible for the breasts to have been touched without causing great pain because of the Chinese burn aspect, I suppose, and moving the hand up the body, skin on skin. It just couldn’t have happened in the way she has described.”
“37. The Tribunal accepts that there are minor inconsistencies in Patient A’s statement to the Centre, to the GMC and her interview notes from the Centre regarding the number of times Dr Sankaye had touched her breast and the orientation of Dr Sankaye’s hand when he touched her breast. Patient A may not be able to remember everything that happened during the incident particularly in respect of whether the gel was wiped off or present on her clothing after the consultation. The Tribunal found that Patient A was prepared to accept that there may have been gaps in her evidence and that there were minor details she could not remember. However, despite the inconsistencies, she was clear, across all of her evidence, that Dr Sankaye had touched the front of her body and her right breast with his left hand on at least two occasions. The Tribunal are not satisfied that she is mistaken in respect of this.”
“40. Dr Sankaye does not suggest that Patient A is lying but that she is mistaken about him touching her breast with his left hand. Dr Sankaye was unable to offer an alternative explanation but consistently stated that he did not touch her breast, that she was mistaken and that it would have been physically very difficult to touch her as she had described.”
“41. The Tribunal considered the description of the incident as described by Patient A that Dr Sankaye had reached underneath her with his hand and touched in between her breasts with his palm and touched her right breast with his fingers. She accepted that she was not able to see this but was clear in her evidence, both written and oral, that his hand was present on her stomach and right breast. The Tribunal considered all of the evidence, including the evidence by both Patient A and the Doctor closer in time to the incident. The Tribunal was satisfied that the evidence given by Patient A regarding the position of Dr Sankaye’s left hand during the physical examination was credible and consistent and that she was not mistaken in respect of this. 42. The Tribunal considered the opinion of both experts, which was an agreed opinion, that there was not a clinical explanation for a physical examination of the front of Patient A’s Body or her breast in a spinal examination. 43. Accordingly, on the balance of probabilities, the Tribunal determined and found paragraph 1(e) of the Allegation proved.”
“55. For my part, I have no difficulty in concluding that, in straightforward cases, setting out the facts to be proved (as is the present practice of the GMC) and finding them proved or not proved will generally be sufficient both to demonstrate to the parties why they won or lost and to explain to any appellate tribunal the facts found. In most cases, particularly those concerned with comparatively simple conflicts of factual evidence, it will be obvious whose evidence has been rejected and why. In that regard, I echo and respectfully endorse the observations of Sir Mark Potter. 56. When, however, the case is not straightforward and can properly be described as exceptional, the position is and will be different. Thus, although it is said that this case is no more than a simple issue of fact (namely, did Dr Southall use the words set out in the charge?), the true picture is far more complex. … I am not suggesting that a lengthy judgment was required but, in the circumstances of this case, a few sentences dealing with the salient issues was essential: this was an exceptional case and, I have no doubt, perceived to be so by the GMC, Dr Southall and the panel.”