“Built into the preponderance of the probability standard is a generous degree of flexibility in respect of the seriousness of the allegation. Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether the even, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established.”
“error of principle for any tribunal to begin its consideration of disputed factual evidence by embarking at the outset of its deliberations upon some general assessment of the credibility of the various witnesses from whom it has heard”
“Patient C’s account in relation to this issue has been consistent from a very early point after the consultation. The clinical record does not suggest that a pulse measurement was taken, although the record shows that blood pressure was recorded. The Tribunal considered it unlikely that Dr Ali would forget to enter a fundamental routine measurement of this type if indeed he had taken Patient C’s pulse manually. The Tribunal accepted the evidence of patient C and finds that Dr Ali was not taking her pulse when he held her hand in the way she described. He was holding her hand inappropriately.”
“The Tribunal accepted Patient C’s oral evidence, which was strongly supported by the text message she had sent immediately after the consultation and consistent with the account she gave to the police soon after the examination. Dr Ali had no recollection of the event. It was satisfied, on the balance of probabilities, it was more likely than not that Dr Ali had begun to pull down Patient C’s shorts without permission.”
“The main features of the consultation itself were inappropriate hand-holding; the attempted pulling down of Patient C’s shorts in preparation for an examination of Patient C’s genitalia when there was no complaint of symptoms in that area; no careful discussion of why such an examination might be required; an examination which included touching and opening of labia’ and a number of failings which were clearly inconsistent with a properly conducted, professional examination.”
“However, the Tribunal considered that a number of the allegations which it found proved could not realistically be attributed to deficiencies in training or lack of knowledge or inexperience when confronted with a patient with more than one complaint”
“(1) Where an allegation against a person is referred under section 35C(5)(b) above to the MPTS— (a) the MPTS must arrange for the allegation to be considered by a Medical Practitioners Tribunal, and (b) a Fitness to Practise Panel, subsections (2) and (3) below shall apply. (2) Where the MedicalPractitioners Tribunal find that the person’s fitness to practise is impaired they may, if they think fit— (a) except in a health case or language case , direct that the person’s name shall be erased from the register; (b) direct that his registration in the register shall be suspended (that is to say, shall not have effect) during such period not exceeding twelve months as may be specified in the direction; or (c) direct that his registration shall be conditional on his compliance, during such period not exceeding three years as may be specified in the direction, with such requirements so specified as the Tribunal think fit to impose for the protection of members of the public or in his interests.”
“(7) On an appeal under this section from a Medical Practitioners Tribunal , 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 Medical Practitioners Tribunal]14 ; or (d) remit the case to the MPTS for them to arrange for a Medical Practitioners Tribunal to dispose of the case in accordance with the directions of the court, and may make such order as to costs (or, in Scotland, expenses) as it thinks fit.”
“9. I accept and adopt the approach outlined in these authorities, in particular that although the court will correct errors of fact or approach: i) it will give appropriate weight to the fact that the Panel is a specialist tribunal, whose understanding of what the medical profession expects of its members in matters of medical practice deserves respect; ii) that the tribunal has had the advantage of hearing the evidence from live witnesses; iii) the court should accordingly be slow to interfere with the decisions on matters of fact taken by the first instance body; iv) findings of primary fact, particularly if founded upon an assessment of the credibility of witnesses, are close to being unassailable, and must be shown with reasonable certainty to be wrong if they are to be departed from; v) but that where what is concerned is a matter of judgement and evaluation of evidence which relates to police practice, or other areas outside the immediate focus of interest and professional experience of the FTPP, the court will moderate the degree of deference it will be prepared to accord, and will be more willing to conclude that an error has, or may have been, made, such that a conclusion to which the Panel has come is or may be “wrong” or procedurally unfair.”
“(1) The approach of the Court on appeal to a finding of fact, and in particular a finding of primary fact. 11. The issue is as to the circumstances in which an appeal court will interfere with findings of fact made by the court or decision maker below. This is an issue which has been the subject of detailed judicial analysis in a substantial number of authorities and where the formulation of the test to be applied has not been uniform; the differences between formulations are fine. I do not propose to go over this ground again in detail, but rather seek to synthesise the principles and to draw together from these authorities a number of propositions. 12. First, the degree of deference shown to the court below will differ depending on the nature of the issue below; namely whether the issue is one of primary fact, of secondary fact, or rather an evaluative judgment of many factors…. The present case concerns findings of primary fact: did the events described by the Patient A happen? 13. Secondly, the governing principle remains that set out in Gupta §10 referring to Thomas v Thomas. The starting point is that the appeal court will be very slow to interfere with findings of primary fact of the court below. The reasons for this are that the court below has had the advantage of having seen and heard the witnesses, and more generally has total familiarity with the evidence in the case. A further reason for this approach is the trial judge’s more general expertise in making determinations of fact... I accept that the most recent Supreme Court cases interpreting Thomas v Thomas (namely McGraddie and Henderson v Foxworth) are relevant. Even though they were cases of “review” rather than “rehearing”, there is little distinction between the two types of cases for present purposes (see paragraph 16 below). 14. Thirdly, in exceptional circumstances, the appeal court will interfere with findings of primary fact below. (However the reference to “virtually unassailable” in Southall at §47 is not to be read as meaning “practically impossible”, for the reasons given in Dutta at §22.) 15. Fourthly, the circumstances in which the appeal court will interfere with primary findings of fact have been formulated in a number of different ways, as follows: - where “ any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses could not be sufficient to explain or justify the trial judge’s conclusions...; - findings “ sufficiently out of the tune with the evidence to indicate with reasonable certainty that the evidence had been misread “…; - findings “ plainly wrong or so out of tune with the evidence properly read as to be unreasonable” …; - where there is “ no evidence to support a … finding of fact or the trial judge’s finding was one which no reasonable judge could have reached”…. In my judgment, the distinction between these last two formulations is a fine one. To the extent that there is a difference, I will adopt, in the Appellant’s favour, the former. In fact, as will appears from my analysis below, I have concluded that, even on that approach, I should not interfere with most of the Tribunal’s primary findings of fact…. ….. (2) The credibility of witnesses and corroborating evidence 17. First, the credibility of witnesses must take account of the unreliability of memory and should be considered and tested by reference to objective facts, and in particular as shown in contemporaneous documents. Where possible, factual findings should be based on objective facts as shown by contemporaneous documents: Dutta §§39 to 42…. 18. Secondly, nevertheless, in assessing the reliability and credibility of witnesses, whilst there are different schools of thought, I consider that, if relevant, demeanour might in an appropriate case be a significant factor and the lower court is best placed to assess demeanour: Despite the doubts expressed in Dutta §42 and Khan §110, the balance of authority supports this view: Gupta §18 and Southall at §59. 19. Thirdly, corroborating documentary evidence is not always required or indeed available. There may not be much or any such documentary evidence. In a case where the evidence consists of conflicting oral accounts, the court may properly place substantial reliance upon the oral evidence of the complainant (in preference to that of the defendant/appellant)…There is no rule that corroboration of a patient complainant’s evidence is required….. 20. Fourthly, in a case where the complainant provides an oral account, and there is a flat denial from the other person concerned, and little or no independent evidence, it is commonplace for there to be inconsistency and confusion in some of the detail. Nevertheless the task of the court below is to consider whether the core allegations are true….”
“27. Finally, an appeal court will not allow an appeal on grounds of inadequacy of reasons, unless, even with the benefit of knowledge of the evidence and submissions made below, it is not possible for the appeal court to understand why the judge below had reached the decision it did reach. It is appropriate for the appeal court to look at the underlying material before the judge to seek to understand the judge’s reasoning and to “identify reasons for the judge’s conclusions which cogently justify” the judge’s decision, even if the judge did not himself clearly identify all those reasons: see English v Emery Reimbold §§89 and 118.”
“The decision of the [Tribunal] finding the Appellant to have acted towards a patient for reasons of sexual motivation, and consequently to find his fitness to practise impaired and to erase his registration were: 1. wrong, and 2. unjust, in that they relied on partial and inadequate reasoning, and 3. because they erred in the proper application of the burden of proof.”
“The Tribunal were of the view that Dr Ali would need to look carefully at Patient B during this consultation and that this could easily be misinterpreted. It was concerned, as were the experts, about the highly subjective nature of this allegation, and in particular the potential for an awkward personal mannerism to be found as a significant criticism.”