David James v General Medical Council [2025] EWHC 2049 (Admin)

[2025] EWHC 2049 (Admin)Case No AC-2024-MAN-000469
IN THE HIGH COURT OF JUSTICE
KING’S BENCH DIVISION
ADMINISTRATIVE COURT
Venue SITTING IN MANCHESTER, Manchester Civil Justice Centre, 1 Bridge Street West Manchester M60 9DJDate 31/07/2025
Before
MRS JUSTICE HILL
Between
DAVID JAMESAppellantGENERAL MEDICAL COUNCILRespondent
Vivienne Tanchel (instructed by Weightmans LLP) for ClaimantAlexis Hearnden (instructed by GMC Legal) for DefendantHearing Hearing date: 4 July 2025
Approved JudgmentThis judgment was handed down remotely at 4:00 pm on 31 July 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................MRS JUSTICE HILL

Introduction

[1]This is an appeal brought by Dr David James (“the Appellant”) under section 40 of the Medical Act 1983 against a decision of the Medical Practitioners Tribunal (“the Tribunal”) made on 18 July 2024. The Tribunal found that the Appellant had slapped a patient in the face on 9 August 2019 whilst providing anaesthetic care and imposed a three-month suspension without review.[2]On 1 July 2025 an order was made under CPR 39.2(4) that the patient is to be known for the purposes of these proceedings as Patient A and that there should be no reference in any report of the proceedings to his name, address, or other details leading to his identification.[3]The Appellant was represented on the appeal by Vivenne Tanchel and the Respondent by Alexis Hearnden. I was greatly assisted by the clear and comprehensive submissions of both counsel. Ms Tanchel had represented the Appellant before the Tribunal and in the earlier criminal proceedings. The factual background Background

The factual background

[4]The Appellant qualified as a doctor in 1986. He became a registered consultant anaesthetist. At the time of the alleged events he was working at St Thomas’s Hospital, part of Guy’s and St Thomas’s Hospitals Trust (“the Trust”) in London.[5]On 9 August 2019 Patient A attended at the hospital to have his gallbladder removed. The surgery was due to start at 12.30 pm but was delayed by over 2 hours. Patient A was assessed for surgery and explained that he did not like needles. This information was conveyed to the Appellant and other colleagues in the operating theatre. Patient A was taken into the operating theatre. When cannulation failed the Appellant decided to use a gaseous induction.[6]It was alleged that while the gaseous induction was being attempted, the Appellant slapped Patient A. Various other allegations were made about the Appellant. A Trust investigation and criminal proceedings followed. The Appellant was found guilty of assault in the Magistrates’ Court but his conviction was overturned on appeal to the Crown Court.

The fitness to practise hearing

[7]The fitness to practise hearing in relation to the Appellant took place between 16 and 31 October 2023 and 8 and 18 July 2024. The Tribunal considered the following allegations made against the Appellant (“the Allegation”): “That being registered under the Medical Act 1983 (as amended): 1. On 9 August 2019, whilst providing anaesthetic care (‘the Procedure’) to Patient A you:a. slapped Patient A on one or more occasion;b. said ‘stop messing around you fucker’, or words to that effect. 2. Towards the end of the Procedure, as Patient A emerged from anaesthesia, he became agitated and/or aggressive and you: a. administered midazolam instead of opiate analgesia; b. administered 10mg of midazolam. 3. The use of midazolam in preference to the use of opiate analgesia as described in paragraph 2a was not clinically indicated. 4. The 10mg dose of midazolam as described in paragraph 2b was: a. excessive; b. not clinically indicated. 5. Your actions at paragraph 2b were intended to cause Patient A retrograde amnesia. 6. After the operation you said to Mr B ‘you’re not going to say anything are you’, or words to that effect. 7. Your actions between paragraphs 2 and 6 were an attempt to prevent your actions at paragraph 1 being reported”.[8]It was agreed that the resources at the hospital on the day of the incident were significantly stretched and that the Appellant had helped in another theatre immediately prior to the operation on Patient A.[9]It was also agreed that Patient A presented with several issues which complicated the anaesthetic procedure: he was clinically obese, needle phobic and was being anesthetised on the operating table rather than in the anaesthetic room. All eye-witnesses and Patient A gave evidence that he became distressed and started moving fast and unpredictably whilst being anaesthetised. Both experts agreed that thrashing around and removing the face mask during gaseous induction presented a serious risk to life for the patient.[10]There was no physical evidence on Patient A of an assault such as bruising, redness or pain. However Patient A said he did not bruise easily and there was no expert evidence on bruising. Although the witness evidence was that Patient A was fully conscious at the time of the alleged slaps there was no evidence that he had cried out in pain when assaulted.[11]The Appellant’s case was that he had not slapped Patient A. However, he accepted that this may have been how his actions in attempting to keep Patient A’s head still and the mask in position, whilst he was still in the “excitatory” (or agitation) phase, had been perceived: see his 2019 statement to the police, which he adopted in his witness statement for the fitness to practise proceedings.[12]The central issues during the hearing related to the sequence of events in the operating theatre, where various people were standing and who had tried to cannulate the patient for intravenous induction.[13]The Tribunal heard witness evidence from Patient A, Dr Kathryn Singh (an anaesthetic registrar), Michael Cousins (an Operations Department Practitioner, “ODP”), Gillians Crooks (a nursing sister), Cara Baker (a consultant surgeon) and the Appellant, as well as expert evidence from Dr Alistair McCrirrick and Professor Jonathan Hardman (consultant anaesthetists).[14]The Tribunal also considered documentary evidence which included the anaesthetic record, documents from the police investigation and an extensive bundle of unchallenged testimonials about the Appellant. These showed that he was a particularly skilled and well-respected clinician who had had a very successful career in the NHS and in private practice.

Evidence relevant to paragraph 1a of the Allegation relied on by the Respondent

[15]Patient A said in his 9 May 2022 witness statement that the Appellant “slapped the right side of my neck multiple times in quick succession”. He continued “I cannot remember exactly how many times, but it was definitely more than once and probably up to three times”. He said that when he saw Ms Baker the day after the operation, he told her about the slap. In examination-in-chief, he said “I’m pretty sure it was just twice”. He was cross-examined and maintained that he felt the slaps. It was put to him that his account was not truthful, which he denied. He told the Tribunal that he had not participated in the Trust investigation or given evidence in the criminal trials because he had several criminal convictions and did not want to be involved with the police.[16]Dr Singh said in her 19 May 2022 witness statement that she did not see the alleged assault but that she “heard a single hard slap” which “caught me completely by surprise and I looked up”, then “quietly mouthed to the ODP, “did he hit him?” and that “the ODP nodded”. She confirmed under cross-examination that she heard but did not see the slap.[17]ODP Cousins in his 17 November 2022 witness statement said that the Appellant “used his left hand to strike the patient’s left cheek three times and said something like “stop messing around you fucker”. He maintained his recollection under cross-examination. He told the Tribunal that he saw the Appellant remove the patient’s mask and slap the patient three times using his left hand on the left cheek. During the course of the Trust investigation he had asserted that the slaps were to the right side of the patient’s face.[18]Neither Dr Singh nor ODP Cousins made a formal complaint about the alleged slapping incident until 19 days after events took place. Alleged contamination of the evidence was an issue at the hearing because it was agreed that they had discussed the events with each other, and that Dr Singh had spoken to her husband, before committing their accounts to paper. There was further evidence that they had discussed their recollection of events at the Crown Court whilst waiting to give evidence in the appeal. They did not agree as to how long the conversation had taken and the precise detail of what they had discussed, but agreed they had spoken about the fact that Dr Singh had referred to hearing a single slap whilst ODP Cousins said he had seen three.[19]Ms Baker was in the room at the material time but told the Tribunal that she did not hear or see any slaps, as she was focused on her computer. Nobody present in the operating theatre at the time reported anything to her either during the operation or at the debrief which took place at the end of the surgical list. The first she became aware of the issue was when she saw Patient A the following day who told her “I got a slap”. At the time that she was told this, during the Trust interview and in evidence to the Tribunal, she stated that she was not sure whether the contact felt by Patient A to his neck was consistent with the provision of the anaesthetic by inhalation.[20]Ms Crooks corroborated the fact that ODP Cousins recounted what had happened in theatre to her on 9 August 2019.

The no case to answer submission and the Tribunal’s determination on it

[21]At the end of the Respondent’s case, Ms Tanchel made a submission of no case to answer in respect of all the allegations against the Appellant, under Rule 17(2)(g) of the General Medical Council (Fitness to Practise Rules) 2004 (as amended). This provides that:
“…the practitioner may make submissions as to whether sufficient evidence has been adduced to find some or all of the facts proved and whether the hearing should proceed no further as a result, and the Medical Practitioners Tribunal shall consider any such submissions and announce its decision as to whether they should be upheld.”
[22]In respect of paragraphs 1, 5 and 7 of the Allegation, Ms Tanchel argued that the evidence of the witnesses of fact was compromised or, at best, inconsistent and so could not be relied upon. In respect of paragraph 6, she contended that there was no evidence to say what the Appellant may have been referring to in his alleged comment set out in paragraph 6 and, even if there was sufficient factual evidence, this could not support a finding of misconduct: see the Tribunal’s determination on the application dated 31 October 2023 at [14] and [15].[23]Counsel for the Respondent argued that the three witnesses were all reliable and had given credible evidence, which was sufficient for a properly directed Tribunal to find paragraph 1 of the Allegation proved. In respect of paragraph 6, she submitted that any variation in the words used by the Appellant was covered by the phrase “or words to that effect” in the paragraph. She argued that(i) the fact that Dr Singh’s and ODP Cousins’ accounts differed was evidence that they had not colluded;(ii) when they met in the reception area, the conversation between Dr Singh and ODP Cousins was not about the details of the event or their report, but was merely about whether they should make a report and, if so, how best to do that; and(iii) it was purely speculative to suggest that Dr Singh’s husband had influenced her: [19] and [20].[24]The Tribunal reminded itself of the principles set out in R v Galbraith 73 Cr App R 124 (CA) and R v Shippey [1988] Crim LR 767, which apply to regulatory proceedings: see, for example, Tutin v General Medical Council [2009] EWHC 553 (Admin). Accordingly, it directed itself that its purpose at this stage was “not to make findings of fact but to determine whether sufficient evidence, taken at its highest, had been presented by the [Respondent] such that a Tribunal, correctly directed as to the law, could properly find the relevant paragraphs proved to the civil standard”: [2], [17], [24] and [26].[25]The Tribunal reached the following conclusions on the issue of witness contamination and collaboration: “34…The Tribunal noted that Patient A had no prior relationship with Ms Baker and had seen nothing to indicate he had any motive to fabricate the allegations against Dr James. The Tribunal reminded itself that neither Dr Singh nor Mr Cousins made any contemporaneous records of the events, neither did they immediately report Dr James. However, the Tribunal did note that Mr Cousins had informally reported the events to Ms Crook on the same day. The Tribunal considered that Ms Tanchel’s claim was that Dr Singh and Mr Cousins met in the reception area and discussed what they would include in their report. The Tribunal noted that the content of Dr Singh’s and Mr Cousins’ complaint emails included differing accounts.35. The Tribunal was unable to exclude completely the possibility that Dr Singh and Mr Cousins had some brief discussion in the reception area about whether Dr James had struck Patient A. However, it did not consider that this contaminated their evidence to the extent that it was unreliable or unhelpful. The Tribunal accepted that there may be some risk over time that they shared details of the event but considered that this brief conversation was primarily about their decision to report something that they believed each had witnessed. The Tribunal accepted Mr Cousins’ claim that he had not made an official report at this point, despite having spoken to Ms Crook, informally, on the day. The Tribunal considered that this conversation was two colleagues sharing their concern about ‘putting their heads above the parapet’ to raise the issue and the only collusion was agreement that they would make a report, not any of the details of that report.36. The Tribunal was mindful that Dr Singh was new to the department and wanted to speak with Mr Cousins about the events but was satisfied that this conversation was about whether to make a report and to whom. The Tribunal considered that these were two professionals who had witnessed something that they say shocked them and had already had an interchange during the event. The Tribunal considered that the risk of contamination here was minimal and does not impact the credibility of either Dr Singh or Mr Cousins.37. The Tribunal considered that it would be speculative to try and determine what Dr Singh’s husband had said and whether this had changed her account. It considered that it was normal for a person to talk about stressful events and considered that Dr Singh’s account had remained consistent over time, as had that of Mr Cousins, with the exception of a change in detail about what specific language Dr James used with Patient A.38. The Tribunal considered that there was more risk of Ms Crook’s evidence being contaminated as she made her statement sometime later. However, the Tribunal considered that Ms Crook’s evidence was chiefly to corroborate that of Mr Cousins, whose account was, in the main, consistent. Therefore, the Tribunal determined that the GMC witness evidence was not contaminated and should stand”.[26]Having determined that the evidence of the GMC witnesses could be relied on, the Tribunal went on to consider if that evidence was sufficient for a reasonable Tribunal, properly directed, to potentially find the facts proved.[27]As to paragraph 1a of the Allegation, the Tribunal found as follows: “40…The Tribunal reminded itself that the evidence for this occurring came from Patient A’s account of the event, Dr Singh’s evidence that she heard a slap and Mr Cousins’ evidence that he saw it. The Tribunal also noted that there was second hand evidence from Ms Crook and Ms Baker, who were informed of the slap by Mr Cousins and Patient A respectively. 41. The Tribunal considered it immaterial whether the word ‘hit’ or ‘slap’ was used in witness statements as they were used synonymously. The Tribunal also noted that Patient A had reported the slap to Ms Baker the next day. The Tribunal considered that there were three witnesses to the slap, which, despite some differences in details, was sufficient that a Tribunal could find the facts proved on this matter. The Tribunal considered that Ms Baker’s evidence did not alter this opinion as her evidence that she did not witness the slap was not evidence that it did not happen. Therefore, the Tribunal determined not to withdraw this paragraph of the Allegation.[28]The Tribunal then addressed paragraph 1b of the Allegation, as follows: “42…The Tribunal considered that the evidence of the words used in the Allegation comes from Mr Cousins and Ms Crook, who was only able to say what Mr Cousins had told her. The Tribunal noted that Dr Singh gave evidence that a different form of words was used than that in the Allegation and Patient A varied in his account. Only Mr Cousins gave evidence on the language being as drafted in the Allegation and this had changed from his original statement and trust interview.43. The Tribunal considered that the phrase as drafted in the Allegation – ‘stop messing around you fucker’ – was not capable of being proved by the evidence before it. The only direct evidence came from Mr Cousins, whose evidence varied about what the specific words used were. The Tribunal considered the phrase in the Allegation ‘or words to that effect’. The alternative form of words that had been put forward by the GMC was ‘stop fucking around.’44. The Tribunal considered that for the phrase ‘or words to that effect’ to be able to be proved, the alternative words must be comparable to the original phrase in both intent and effect. It considered a key aspect in determining this to be the expletive in this phrase. The Tribunal considered that it was clear from the various accounts that, whatever words were used, they were directed at Patient A. The Tribunal also noted that there was a variety of evidence that Patient A was wriggling around and making it difficult for the team to administer anaesthetics.45. The Tribunal considered the two phrases that had been suggested. It considered that the expletive in the phrase as drafted in the Allegation was clearly a pejorative directed at Patient A. However, as stated above, the Tribunal did not consider the evidence available to be sufficient to prove that this phrase was used. The Tribunal considered that the expletive in the alternative phrase, whilst improper language, could reasonably be substituted for a more benign word such as ‘messing’, meaning that the expletive was a broader expression of frustration rather than an insult directed specifically at Patient A.46. The Tribunal considered there to be a material difference between the two phrases that had been suggested and that it was being asked to substitute in words to fit the Allegation. It considered that the evidence before it was not capable of proving that the alternative phrase had the same effect as the phrase drafted in the Allegation and therefore determined to withdraw this paragraph of the Allegation”.[29]The Tribunal then considered paragraphs 2, 3 and 4 of the Allegation together, as they all related to the factual aspects of the administration of midazolam. The Tribunal determined not to withdraw paragraphs 2, 3 and 4 of the Allegation, in part because of Dr Singh’s evidence that she had seen the Appellant injecting something into the IV, had asked what it was and been told by him that it was midazolam: [48]-[50].[30]The Tribunal then considered paragraph 5 of the Allegation and considered that it was being asked to draw an inference about the Appellant’s motivation, continuing as follows: “52. The Tribunal reminded itself of Dr McCrirrick’s evidence that, whilst it was plausible, there was poor evidence that a high dose of midazolam had the effect of causing retrograde amnesia. The Tribunal noted that a low likelihood of success did not necessarily mean that this was not Dr James’ motivation. 53. The Tribunal looked at where this suggestion had originated and considered that it came from speculation on the part of Dr Singh, who later conceded that her understanding of the effect of midazolam was wrong. The Tribunal considered that the evidence that Dr James’ motivation was malign was very dubious and it was being asked to speculate. It considered that, taken at its highest, the GMC’s evidence was only grounds for suspicion and determined that the evidence was not capable of proving the Allegation. Therefore, it determined to withdraw paragraph 5 of the Allegation”.[31]As to paragraph 6 of the Allegation, the Tribunal reminded itself that the evidence for this came from the accounts of Dr Singh and Mr Cousins. As set out above, the Tribunal considered these to both be reliable witnesses and so determined that the evidence of two witnesses was sufficient and that a Tribunal could find the Allegation proved.[32]In light of its findings on the other paragraphs, the Tribunal withdrew paragraph 7 (where it related to paragraphs 2, 3 and 5) of the Allegation were withdrawn.

The Appellant’s evidence

[33]The Appellant described his actions with respect to Patient A to the Tribunal as follows:
“So when you have a patient who is thrashing their head around violently from side to side and you are trying to maintain a face mask on the patient, which is something that anaesthetists do as a subcon...Through our training and our experience we are hard-wired to reflexively keep masks on patients. Now, not only are we keeping - trying to keep the mask in place so we can deliver oxygen and the anaesthetic, we’re also, in the process of doing that, we are exerting a level of restraint in order to keep the mask on. Now, in this particular instance, over a very short period of time, my hands were variously ... my hands were variously moving continuously to try to reseat the mask of the patient and they were also moving in space in order to restrain and maintain the mask… So whilst I’m effectively wrestling with the patient’s airway and bearing in mind this is happening over a very short space of time and things are happening simultaneously I look up and I also see that the patient’s arms and legs are flailing around, and at the speed of a, you know, at the speed of thought, I immediately thought, “Holy moly, this guy is gonna fall off the table any second now”
. So I shouted out to the theatre staff who were busy about their activities around the operating theatre, to come and help, which they did, including Cara Baker from her position at the computer on the other side, so they came to prevent the patient falling off the table. I immediately said to Kathryn Singh, “You need to put a cannula in quickly”, which she tried and failed. Cara Baker’s standing there seeing that Kathryn Singh had failed, grabbed a cannula off the anaesthetic machine and put one in, through which the remainder of the drugs were given, and the patient the situation was retrieved… Bearing in mind I’m still wrestling with a morbidly obese patient who’s thrashing around while all this is going on. This is not casual observation, this is - I’m actually physically trying to keep a patient alive… I’m suggesting that, as I said before, the patient moving their head vigorously from side to side and my hands place – my hands in constant motion and changing position, trying to re-establish the airway and restrain him all at once, could be seen as – could be seen as something that it wasn’t”.

The Tribunal’s determination at the conclusion of the evidence

[34]Having heard all the evidence, the Tribunal gave a further detailed determination of the facts on 15 July 2024.[35]At [15]-[18], the Tribunal directed itself correctly that the burden of proof rested on the Respondent and that the standard of proof was that applicable to civil proceedings, namely the balance of probabilities, ie, whether it was more likely than not that the events occurred. It reminded itself of the advice it had received from the Legally Qualified Chair to the effect that(i) a serious allegation requires careful analysis of the evidence taking account of inherent probabilities or improbabilities of an event happening; but there is no different standard of proof or especially cogent type of evidence required;(ii) it was entitled to draw proper inferences from the evidence, but it must not speculate and should only draw an inference if it can safely exclude other possibilities; and(iii) it should not confuse grounds for suspicion with evidence sufficient to prove, on the balance of probabilities, a serious allegation against a doctor.[36]At [19]-[21], the Tribunal summarised the guidance that has been given in the caselaw about how evidence should be evaluated when considering the facts. The Tribunal noted the caution to be applied when considering the confidence and demeanour of a witness and continued: “19…In any approach to the factfinding stage care must be taken to avoid considering each part of the evidence in isolation. The tribunal should consider the reliability of the evidence as a global picture and not in isolation…Tribunals should consider all of the evidence before them before coming to a conclusion about a witness’s credibility. This could include conflicts in evidence with another witness, denials of the allegations and reasons why they could not be true. It is open to Tribunals not to rule out the whole of a witness’s evidence based on credibility; credibility can be divisible… 21. Studies have demonstrated that memory can be contaminated by erroneous information that people are exposed to after they witness an event. A person's evidence is ‘contaminated’ if the evidence is false or misleading in any respect, or is different from what it would otherwise have been, and the evidence arises as a result of an agreement or understanding between that person and one or more others, or as a result of the person being aware of anything alleged by one or more other persons whose evidence may be, or has been, given in the proceedings”.[37]The Tribunal accepted the advice of the Chair that it was for the Tribunal to consider the reliability of any evidence that they concluded was contaminated and that it should consider whether to disregard it: [22].[38]The Tribunal noted that it had been informed that the Appellant had no previous convictions or disciplinary findings and reminded itself that his good character “was a matter it was entitled to take into account where his credibility was called into question, when considering whether it is more likely than not that he was telling the truth and whether he was likely to have behaved in the manner alleged”: [23]. The Tribunal had previously referred to the fact that the documentary evidence it had considered included testimonials about the Appellant: [14].[39]The Tribunal summarised the evidence in relation to paragraph 1a of the Allegation as follows: “25. The Tribunal considered whether, on 9 August 2019, whilst providing anaesthetic care to Patient A, Dr James, on one or more occasions, slapped Patient A. In determining this paragraph, the Tribunal reminded itself of the evidence of Patient A, Ms Baker, ODP Cousins and Dr Singh, all of whom were present at the time. In particular it has considered the initial reports of these witnesses, mindful that over time evidence can be influenced by other matters.26. Patient A recalls being slapped ‘up to three times’ by Dr James. The Tribunal took into account that Patient A was being administered drugs to make him unconscious and could have been mistaken about being slapped or for how many times. The Tribunal had determined earlier that Patient A had no reason to fabricate the story about Dr James.27. Ms Baker who conducted the operation was present in the operating theatre at the time although she did not witness Dr James slapping Patient A. She says she was at her computer and her mind was focussed on preparing for the operation. She saw Patient A the next day. She says that Patient A spontaneously volunteered words to the effect of “I got a slap” from Dr James.28. ODP Cousins says that he was standing next to Dr James and Patient A. He initially said that he saw Dr James slap the patient’s face. While ODP Cousins did not report the matter straight away, he did inform a work colleague Sister Gillian Crooks about the incident later that day. In later statements ODP Cousins said that Dr James slapped Patient A three times.29. Dr Singh did not see Dr James slap Patient A. She says that she heard a loud slap sound. She says that she mouthed “did he just slap him” to ODP Cousins and that he mouthed back “yeah” and nodded.30. Dr James denies slapping Patient A. He says “I did not slap the Patient A. However, I accept that this may have been how my actions were perceived as I attempted to keep his head still and the mask in position….”.[40]At [32]-[34], the Tribunal cited the evidence from ODP Cousins and the Appellant as to the environment in which the slap is alleged to have taken place, and the evidence from Dr McCrirrick that it can be an extremely taxing situation to manage as it becomes increasingly difficult to keep the facemask in place to administer further anaesthesia, which on occasion can become a potentially life-threatening situation.[41]The Tribunal’s key reasoning in relation to paragraph 1a was as follows: “35. The Tribunal was mindful that this incident took place in a hectic environment with a potentially life-threatening situation and a medical emergency where Dr James’ focus was on Patient A’s well-being. However, there were three witnesses that say Dr James slapped Patient A at least once and, despite some differences, their evidence was reliable. The Tribunal was satisfied that it was more likely than not that the Appellant did slap Patient A”.[42]In respect of paragraphs 2-4 of the Allegation, the Tribunal found that Patient A had been given a 10 mg dose of midazolam which was excessive and not clinically indicated, but it was not the Appellant who had directly administered the midazolam. The Tribunal’s reasoning included the following: “37…The Tribunal noted that it is the GMC’s case that Dr James directly administered the [10 mg of midazolam] to Patient A.38. The Tribunal noted that there was a factual dispute about who directly administered midazolam to Patient A.39. Dr James…says that he asked his assistant, SSN McDonald to fetch 5mg of midazolam from the controlled drug cupboard. He says that he did not directly administer the midazolam but cannot recall who did. He says that he instructed an assistant to administer a 5mg dose.40. Dr Singh says that she saw Dr James go to the anaesthetic room. He came back and gave Patient A an injection. She said that she asked him what this was, and that he said that it was midazolam. She said that when she questioned Dr James on the dose, he had given he went to the anaesthetic room to check the vial. She said that Dr James said he had accidently given a 10mg dose rather than a 5mg dose. He then administered flumazenil to reverse the effect of midazolam.41. The Tribunal noted that Dr James stated that the midazolam was already available when Patient A was on the post operative bed. Dr Singh in her witness statement accepted that the midazolam would have been signed out in advance of the operation. ‘Midazolam is a controlled drug, as is morphine and fentanyl, so would have been signed out of the controlled drugs cupboard by the ODP in advance of the operation. Non-controlled drugs such flumazenil are freely available for use in the theatre and are stored in the anaesthetic room’. 42. On that basis the Tribunal concluded that it was more likely than not the midazolam was readily available, and that Dr Singh had been mistaken. She had assumed Dr James had gone to get the drug when he left the room, However, there was not any evidence that Dr James had access to the controlled drugs cabinet to get the midazolam. 43. The Tribunal also concluded that Dr Singh could have mistaken the administration of midazolam with the administration of flumazenil or saline. Therefore, the Tribunal accepted Dr James’ version of events that he prescribed midazolam and directed someone else to administer it”.[43]Notwithstanding who administered the midazolam the Tribunal considered whether midazolam was administered instead of opiate analgesia. The Tribunal took into account the expert opinions of Professor Hardman and Dr McCrirrick, and concluded that there was a body of opinion, articulated by Professor Hardman and the Appellant, that in relation to the circumstances of Patient A, there was a not a preference in using opiate analgesia instead of midazolam: Accordingly, the Tribunal found paragraphs 2a and 2b and 3 not proved: [44]-[51].[44]The Appellant and both experts had agreed that administering a 10 mg dose of midazolam was excessive. The Tribunal found paragraphs 4a and 4b, albeit noting that it was not the Appellant who had directly administered the midazolam, as set out in paragraph 2b: [52]-[54].[45]The Tribunal found paragraph 6 of the Allegation not proved, holding as follows: “55. The Tribunal considered whether after the operation Dr James said to ODP Cousins ‘you’re not going to say anything are you’. Dr James says that he has no recollection of making any such comment.56. The Tribunal also took into account the written evidence of ODP Cousins provided for the GMC. He said: ‘I walked around foot (sic) of the patient’s bed and Dr James said to me ‘You’re not going to say anything are you.’57. In his earliest account to the Trust and his later statement to the police, ODP Cousins uses different wording. He says: ‘I was back in theatre 5 again and Dr James asked me ‘Are you going to say anything?’58. Dr Singh gives a different variation on the words used: ‘Just before waking the patient up Dr James asked ODP Cousins in front of everyone in theatre, “You’re not going to tell on me are you? You’re not going to say anything about this are you?” which ODP Cousins ignored and did not respond.’59. The Tribunal noted that ODP Cousins gave different accounts of what Dr James allegedly said. It also noted that Dr Singh’s recollection varied from ODP Cousins.60. The Tribunal considered that the words ‘are you going to say anything?’ have a very different interpretation and effect than the words ‘you’re not going to say anything are you?’. The first could be seen as a straightforward question; the second as a possible attempt to influence a person’s actions.61. Given its findings that the words ‘are you going to say anything?’ do not have the same effect as the words in the Allegation, the Tribunal did not find it more likely than not that words in the Allegation or words with a similar effect were used by Dr James, the Tribunal found paragraph 6 of the allegation not proved”.[46]The Tribunal found paragraph 7 of the Allegation not proved due to its findings on paragraph 6: [62].[47]Misconduct was admitted and found proved by the Tribunal. The Tribunal found that the Appellant’s fitness to practise was impaired. The Respondent submitted that erasure from the register was appropriate. The Tribunal acceded to the Appellant’s submission that a period of suspension was appropriate and imposed a suspension for three months without review. The legal framework General principles relevant to statutory appeals of this kind

The legal framework

[48]Section 40 of the Medical Act 1983 provides a right of appeal to the High Court against determinations on the facts, impairment and/or sanction reached by a Tribunal.[49]Under CPR 52.21(1) every appeal will be limited to a review of the decision of the lower court unless a practice direction makes a different provision for a particular category of appeal; or the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing.[50]Under CPR 52.21(3), the appeal court will allow an appeal where the decision of the lower court was “wrong; or unjust because of a serious procedural or other irregularity in the proceedings in the lower court.”[51]The approach to be taken by the court in a section 40 appeal was set out by the Court of Appeal in Sastry v General Medical [2021] EWCA Civ 623. Nicola Davies LJ, giving the judgment of the court, identified the following points as to the nature and extent of the section 40 appeal and the approach of the appellate court at [102]: i) There is an unqualified statutory right of appeal by medical practitioners pursuant to section 40 of the 1983 Act; ii) The jurisdiction of the court is appellate, not supervisory; iii) The appeal is by way of a rehearing in which the court is fully entitled to substitute its own decision for that of the Tribunal; iv) The appellate court will not defer to the judgment of the Tribunal more than is warranted by the circumstances; v) The appellate court must decide whether the sanction imposed was appropriate and necessary in the public interest or was excessive and disproportionate; and vi) In the latter event, the appellate court should substitute some other penalty or remit the case to the Tribunal for reconsideration.

Appeals challenging findings of fact

[52]In Byrne v General Medical Council [2021] EWHC 2237 (Admin), Morris J reviewed the principles applicable to a challenge to findings of fact, and distilling them in the following way:
“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: Assicurazioni Generali at §§16 to 20… 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: see Gupta, and McGraddie v McGraddie at § §3 to 4. 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”: per Lord Thankerton in Thomas v Thomas approved in Gupta; findings “sufficiently out of the tune with the evidence to indicate with reasonable certainty that the evidence had been misread” per Lord Hailsham in Libman; - findings “plainly wrong or so out of tune with the evidence properly read as to unreasonable” per…Casey at §6 and Warby J (as he then was) in Dutta [v General Medical Council [2020] EWHC 1974 (Admin)] at §21(7); 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”: per Lord Briggs in Perry after analysis of McGraddie and Henderson. 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…”
[53]In Khan v General Medical Council [2021] EWHC 374 (Admin) at [58]-[65] Julian Knowles J conducted a thorough review of the authorities on the approach the High Court should take to appeals pursuant to section 40. At [65] he observed that notwithstanding the disadvantages that an appellate court has in not having heard witnesses when the Tribunal has done so, Dutta and Lawrence v General Medical Council [2012] EWHC 464 (Admin) were examples of cases where the appellate court nevertheless did overturn findings of fact because of a flawed approach by the Tribunals in question.

The assessment of witness evidence and the giving of reasons

[54]In cases of this nature a lengthy judgment is not required, but the reasons will need to contain a few sentences dealing with the salient issues: Southall v General Medical Council [2010] EWCA Civ 407 at [55]-[56], Yassin v General Medical Council [2015] EWHC 2955 (Admin) at [30] and Khan at [58].[55]In Hindle v Nursing and Midwifery Council [2025] EWHC 373 (Admin), Alan Bates (sitting as a Deputy Judge of the High Court), considered the circumstances in which a fitness to practise tribunal is required to set out its assessment of the general credibility and reliability of each witness’s evidence; and the extent of the forensic analysis and reasoning required for making such assessments: [1]. Both counsel relied on aspects of the judgment in Hindle, such that it is appropriate to set out the Deputy Judge’s reasoning in a little detail.[56]The Deputy

Judge summarised the key aspects of the evidence and the Panel’s task as follows:

“7. The Disputed Conduct Allegations that the Panel had to determine turned very substantially on factual accounts given by the Complainant Nurses which were contradicted by the Appellant and, in relation to some allegations, by the Paramedic. The differences between the Key Witnesses’ respective factual accounts were unlikely to be explicable by mere differences in individuals’ honest recollections or perceptions of events. Both the Appellant and the Paramedic asserted in their evidence that the Complainant Nurses had “fabricated” their versions of events as part of a concerted campaign to undermine the Appellant and drive her out from her job as their manager 8. Against this background, a vital element of the Panel’s task in these proceedings was to decide which witnesses’ accounts could be relied on in relation to the various disputed allegations. In my judgment, this required the Panel to take into account, as a relevant consideration, the extent to which each of the Key Witnesses was generally credible and reliable, and whether there were factors present which should cause her or his evidence to be viewed with caution or circumspection. The Panel had also to explain, in respect of the disputed allegations it found proved, why it had preferred the account given by one or more of the Complainant Nurses to the contrary account given by the Appellant and, where relevant, by the Paramedic. It was not sufficient for the Panel merely to set out the witnesses’ respective accounts, and to then say, “We prefer the evidence of [name of witness(es)] and therefore find this charge proved”
. The Applicant was entitled to know why her evidence on the relevant matter had not been relied upon by the Panel, and such reasons as were given in that regard had to be rational and based on weighing up all legally relevant considerations. Such considerations ought to have included the Panel’s assessment of the relevant witnesses’ general credibility and reliability, taking all relevant factors into account. 9. Of course, witnesses’ factual accounts may be honest but mistaken; and a witness may, for a variety of reasons, tell some lies, whilst being truthful about other matters. The fact that a witness has been found to have given an incorrect account, or even to have deliberately lied, in relation to one matter does not mean that everything the witness says is untrue or to be disregarded. 10. But it does not follow that forming an assessment of the general credibility and reliability of witnesses’ evidence is unimportant or irrelevant. On the contrary, such an assessment will often be an important input to the tribunal properly evaluating whether a burden of proof has been satisfied in respect of matters on which there is a conflict between the accounts of different witnesses. If one part of a witness’s evidence appears to be untrue, then this may properly be taken into account when the tribunal is considering whether, and to what degree, it can place reliance on another part of her evidence. This is common sense. It will often be appropriate for the tribunal also to consider why the witness’s evidence was false or incorrect on a certain matter, as this may be relevant to the extent to which the witness’s evidence generally, or in relation to certain other matters, being viewed with caution. For example, the tribunal may discern that the witness has a tendency to rush to draw negative inferences or conclusions about a particular person or group of persons, or that she appears to have been motivated by an objective or desire to achieve a particular self-serving result. 11…the Panel’s approach of considering the evidence relating to each charge against the Applicant on an individual charge-by-charge basis, effectively in silos, has led it into error. It has, for example, failed to consider whether the fact that the Complainant Nurses’ factual accounts in relation to one allegation was found (by reason of those accounts having been contradicted by CCTV evidence) to be incorrect should affect the degree of confidence it should place on those witnesses’ assertions in support of other allegations. It has also failed to properly evaluate the contextual evidence relating to the Complainant Nurses’ behaviour prior to, and during their employer’s investigation of, their joint complaint submission, which was relevant to a proper assessment of the degree to which the Panel could have confidence in the truthfulness and reliability of their evidence. 12. The crux of the Appellant’s case was that the Complainant Nurses had created a catalogue of fabricated and exaggerated allegations against her, to rid themselves of a manager with whose decisions they disagreed and whose job they thought should have gone to one of them. The Panel’s failure to properly grapple with assessing the credibility and reliability of the Key Witnesses had the consequence that it failed to deal adequately with the Appellant’s case.”[57]The Deputy

Judge returned to this theme later in the judgment:

“51. In respect of each such conduct allegation, it was incumbent upon the Panel to provide informative rational reasons for its finding that the NMC had discharged its burden of proof in relation to all the facts necessary for supporting that allegation. 52. That is, of course, so in every case that comes before a professional discipline or FtP tribunal. But the nature and extent of the reasoning required – including precisely what issues need to be grappled with as part of the reasoning in order to justify a finding a fact – will vary depending on the nature of the factual dispute and the relevant evidence. Where an allegation is based on factual accounts asserted by certain witnesses which are directly contradicted by the person facing the allegation or by other witnesses, the tribunal will need to carry out a careful and thorough forensic analysis for deciding whether the burden of proof is satisfied. Such an analysis should seek to draw upon all available relevant indicators as to whether each witness’s account is reliable. Those indicators will often include the tribunal’s overall impression of the witnesses it has seen giving oral evidence… 53. In such a case, it is not sufficient for the tribunal to simply consider each charge individually (i.e. in isolation from the other charges and allegations on which the witnesses have given testimony), briefly summarise the witnesses’ competing narratives relevant to that charge, and then say, “We prefer the evidence of [name of witness(es)] and therefore find this charge proved”
. But that is the approach that the Panel has taken again and again in its Reasons. On my first reading of the Reasons, I repeatedly wrote “Why?” in the margin, signifying my inability to understand why the Panel had chosen to prefer the evidence of one or more of the Complainant Nurses over the contrary evidence of the Appellant and, where relevant, the Paramedic.”[58]At [54]-[55], the Deputy Judge cited cases in which the concept of witness credibility, and the way that a tribunal should go about assessing it, has been considered, including Onassis v Vergottis [1968] 2 Lloyd’s Rep 403 and Gestmin SGPS S v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm). He observed that in some cases, of which the present case was one, there may be very few contemporaneous documents before the tribunal which are relevant to the matters on which witnesses have given differing factual accounts. He continued: “55…In such cases, the tribunal is likely to need to take particular care to make its own assessment of each witness’s oral evidence, so as to form a view as to that witness’s general credibility and reliability: see Natwest Markets plc v Bilta (UK) Ltd [2021] EWCA 680, at [50]-[51]. 56. This does not mean falling back onto discredited notions that the truthfulness of a witness’s evidence can be ascertained from observing her ‘demeanour’ whilst giving evidence, such as whether she is looking downwards when giving her answers, or whether she appears ‘shifty’: R (Dutta) v General Medical Council [2020] EWHC 1974 (Admin), at [39]-[42], per Warby J. Rather, it means listening very carefully to the content of what the witness says in her oral evidence, and:(a) considering the extent to which it is consistent with relevant factual accounts the witness has given in her witness statement and other documents; and(b) assessing other indicators relevant to whether the tribunal can have confidence in the witness’s testimony”.[59]On the facts of Hindle, the Deputy

Judge held as follows:

“58. In the present case, a feature of the Panel’s Reasons is that the Panel set about considering, and making findings on, the individual charges without first setting out a broad assessment of each of the witnesses from whom they had heard, and whether that witness’s evidence was generally credible and reliable. In my judgment, however, such an assessment was vital in a case such as this one, if the Panel’s findings were to be fair… 59. The Panel’s approach of considering each charge individually in a silo, fand its failure to assess the overall credibility and reliability of each of the Complainant Nurses, led the Panel to ignore an important relevant consideration when assessing whether the burden of proof had been met in respect of each charge. The fact that those witnesses appeared to have given incorrect accounts in relation to certain of the charges that the Panel had found ‘not proved’ was simply ignored when the Panel was considering whether it could rely on those witnesses’ evidence as satisfying the NMC’s burden of proof in respect of other allegations. In the circumstances of this case, it was not rationally open to the Panel to simply ignore that matter by taking the rigidly siloed approach that it did.”

The grounds of appeal in overview

[60]The Appellant advanced a series of grounds, addressed by counsel in a helpful composite way, as follows: Grounds 1-3: The Tribunal erred by(i) relying on evidence that was contradictory and inconsistent;(ii) failing to make detailed findings of fact in relation to the incident; and(iii) making a finding which amounted to “something happened” rather than properly addressing the burden of proof. Ground 4: The Tribunal failed to give any, or any adequate weight to the fact that the witnesses discussed events on several occasions; and Grounds 5 and 6: The Tribunal failed to give any or any adequate weight to the Appellant’s evidence and to the Appellant’s professional standing.[61]The Respondent relied on the fact that the Tribunal had the advantage of hearing live evidence from a number of witnesses, including Patient A and the Appellant. The Respondent’s overarching contention was that the finding that the Appellant had slapped Patient A was not sufficiently out of tune with the evidence as a whole so as to justify interference on appeal.

Grounds 1-3

[62]In advancing submissions under Grounds 1-3, Ms Tanchel rightly acknowledged that the effect of the legal principles set out at [48]-[53] above is that the threshold for a High Court to interfere with findings of fact made by Tribunals is a high one, and that it was certainly possible for the Tribunal to accept one of the versions of events set out by the Respondent’s witnesses. In considering the submissions I have been very conscious of the fact that the starting point is that an appeal court should be very slow to interfere with findings of primary fact of the court below, for the reasons explained in Byrne: see [52] above.[63]Ms Hearnden was correct to highlight that the differences in recollection by the witnesses were acknowledged both by the Respondent in submissions and by the Tribunal in its determination. Further, the exercise which the Tribunal was required to undertake – of assessing the credibility and reliability of evidence which was not entirely consistent – was not unusual. I also agree with the Respondent’s submission that the Tribunal was not required to determine every “satellite” issue (such as the exact location of people in the room) and was entitled to focus on the central issue of whether the Appellant slapped Patient A on one or more occasion, or not; and recognise the principle that when reviewing a written judgment with the benefit of hindsight, there is an element to which there is always “more than can be said”.[64]However, with those caveats, having considered all the submissions, I have concluded that the Tribunal did fall into error, for the following reasons.[65]First, the Tribunal failed to set out which of the disputed facts the Tribunal had found proven. It did not attempt to resolve or make findings on the key sub-issues in the allegation, such as(i) how many times did they conclude Patient A had been slapped?(ii) where was Patient A slapped was it on the neck or on the face?(iii) was the Appellant in a bad mood during the operation showing frustration and annoyance?(iv) at which point during anaesthesia was the slap said to have happened? and(v) where was the Appellant sitting/standing when it occurred?[66]The determination does not explain which of the various accounts the Tribunal accepted and why. The Tribunal simply acknowledged that there were differences in the accounts given. Each of the Respondent’s witnesses gave a different account of what is alleged to have occurred.[67]The inconsistencies between the witness’ accounts on both the number of times the patient was slapped as well as where on his body he was slapped are issues which needed to be resolved for the finding of fact to be one which a reasonable Tribunal could make. This was important because aside from the account of ODP Cousins, the only evidence of the slap was from Dr Singh, who did not see anything happen and whose evidence as to what she heard contradicted the evidence of ODP Cousins; and Patient A, whose account could have been consistent with the medical emergency described by the Appellant.[68]In these circumstances, I accept Ms Tanchel’s submission that the effect of the Tribunal’s characterisation of the evidence is that “something happened”, which was an insufficient basis for finding against the Appellant on paragraph 1a.[69]Second, although the Tribunal had directed itself that it should consider the reliability of the evidence as a global picture and not in isolation, reflecting the guidance in Hindle at [53] (see [36] and [57] above), there is no evidence that it did so.[70]The Tribunal had considered at the no case to answer stage that it was not safe to rely on ODP Cousins’ evidence about the words allegedly used in paragraph 1b of the Allegation, not least as his evidence on this issue had varied: see [28] above. At the end of the evidence, the Tribunal had formed the same view in relation to ODP Cousins’ evidence about the words said to justify paragraph 6, in relation to which he had also given different accounts: see [45] above.[71]In respect of Dr Singh, the Tribunal had noted at the no case to answer stage that the suggestion as to the Appellant’s motivation in giving Patient A the midazolam had come from speculation on the part of Dr Singh, who later conceded that her understanding of the effect of midazolam was wrong: see [30] above. Having heard all the evidence, the Tribunal did not consider that it could rely on Dr Singh’s evidence that the Appellant gave Patient A the injection of midazolam, checked the vial when she questioned him on the dose, said that the Appellant said he had accidently given a 10mg dose rather than a 5mg dose and then administered flumazenil to reverse the effect of midazolam. Rather, the Tribunal concluded that Dr Singh had been mistaken as to whether the Appellant had administered the midazolam and could have mistaken the administration of midazolam with the administration of flumazenil or saline: see [42] above.The Tribunal also felt unable to rely on Dr Singh’s evidence about the words said to justify paragraph 6, which varied from the account given by ODP Cousins: see [45] above.[72]However, when considering paragraph 1a, there is no evidence that the Tribunal considered the issues with the evidence of OPD Cousins and Dr Singh on the other paragraphs, which it had not felt able to accept.[73]Moreover, the effect of the Tribunal’s decisions to withdraw certain paragraphs of the allegation at the no case to answer stage and to find others not proved after the evidence, was that the overall “narrative” of the Appellant’s behaviour advanced by the Respondent – to the effect that he had behaved with frustration and aggression and had sought to prevent his conduct being reported – had not been accepted. This at least arguably cast a very different light over paragraph 1a of the Allegation, and this was not addressed by the Tribunal.[74]Third, the Tribunal here fell into the same error as that in Hindle in considering the evidence relating to each charge against the Applicant not merely on an individual charge-by-charge basis (as was correct), but “effectively in silos” (which was not). As in Hindle, the fact that OPD Cousins and Dr Singh appeared to have given incorrect accounts in relation to certain of the charges that the Tribunal had withdrawn or found not proved could not simply be ignored when the Tribunal was considering whether it could rely on those witnesses’ evidence as satisfying the Respondent’s burden of proof in respect of other allegations: it was not rationally open to the Tribunal to “simply ignore that matter by taking the rigidly siloed approach that it did”: see [59] above. As noted in Hindle, the Tribunal had to explain, in respect of the disputed allegations it found proved, “why it had preferred the account given by one or more of the [witnesses] to the contrary account given by the Appellant” [my emphasis].[75]Fourth, the evidence of ODP Cousins necessarily involved facts which if correct, would mean that the Appellant put the client’s life at risk contrary to the Tribunal’s own finding that the Appellant’s “focus was on “Patient A’s wellbeing” and that he had the patient’s best interests at heart. The Tribunal’s finding of assault by slapping the Patient A is irreconcilable with its finding that the Appellant was acting in the Patient’s best interests, without explanation.[76]Fifth, at [30], the Tribunal referred to part of the Appellant’s evidence as to how the events unfolded and accepted that evidence. However, the Tribunal failed to give any explanation for why it had disbelieved the Appellant on the crucial issue of the alleged assault, namely the basis upon which they found him unreliable or incredible. This is notable given that during the cross-examination of the Appellant it was explicitly put to him that he was a liar.[77]The Appellant, as in Hindle, was entitled to know why his evidence had not been accepted by the Tribunal, and such reasons as were given in that regard had to be rational and based on weighing up all legally relevant considerations, including the Tribunal’s assessment of the relevant witnesses’ general credibility and reliability: see [56] above.[78]Sixth, this erroneous approach is further aggravated in the particular circumstances of this case because the Appellant accepted that his hands were moving, that he did touch the Patient both by holding the mask down on his face and by trying to stop his neck from moving. Thus, there was no denial that the Appellant had made contact with the Patient’s body - the live issues in the case was where that contact was and whether it was undertaken for clinical need or was an unlawful assault. Accordingly, it was necessary for the Tribunal to identify which version of events it had accepted as the basis for its finding that the Appellant slapped Patient A.[79]For all these reasons I uphold Grounds 1-3.

Ground 4

[80]As noted above, the Appellant had placed significant reliance before the Tribunal on the fact that ODP Cousins and Dr Singh had discussed their recollections of events on several occasions. Whilst it was not suggested that this was done in bad faith or that they intentionally colluded to make false allegations, it was submitted that their evidence was contaminated by these discussions.[81]However, Ms Hearnden rightly highlighted that the no case to answer submissions on behalf of both parties addressed contamination and the Tribunal made findings on this issue in its 31 October 2023 determination: see [25] above. Further, after the evidence had concluded, the parties repeated their submissions on this issue, and the Chair provided appropriate legal advice to the Tribunal on this issue.[82]The Tribunal had plainly concluded that the issues raised had not contaminated the witnesses’ evidence to the extent that it was unreliable or unhelpful: see [25] above. It was, rightly, not contended that this was an irrational conclusion.[83]In those circumstances I am not persuaded that the Tribunal’s failure to revisit this issue at the end of the evidence was an error. Ground 4 is therefore dismissed.

Grounds 5 and 6

[84]The Tribunal recorded the legal advice it had received that it could take into account the Appellant’s good character both in considering whether it is more likely than not that he was telling the truth and whether he was likely to have behaved in the manner alleged; and noted that it had considered the testimonials about the Appellant: see [38] above.[85]However, there is no evidence that the Tribunal did consider these issues, or what weight they were afforded, when it assessed the evidence on paragraph 1a. There is no explanation in the determination as to what if any weight the Tribunal placed on this and why nonetheless it rejected his evidence.[86]This evidence of the Appellant’s good character was particularly relevant given the circumstances of the case, in which the Appellant accepted that in his haste to ensure that Patient A remained safe with the mask placed securely over his mouth his hands may have made contact with the patient’s body. Accordingly, the key issue for the Tribunal was not whether the Appellant’ hands made contact with the patient (a slap) but rather whether his actions were no more than what was clinically necessary or an assault. His good character was directly relevant to that issue.[87]Again, these errors compounded those identified in Grounds 1-3.

Conclusion and relief

[88]Accordingly, for all these reasons, I conclude that the finding made by the Tribunal was wrong. In exercise of the court’s powers set out in section 40(7)(b) of the Medical Act 1983, I allow the appeal and quash the decision appealed against.[89]Ms Hearnden invited me, in addition, to exercise the power in section 40(7)(d) to remit the case back to the Medical Practitioners Tribunal Service (“MPTS”) to dispose of the case in accordance with the directions of the court. She relied on the serious nature of the allegation against the Appellant and the fact that this judgment did not involve any assessment that no reasonable Tribunal could find that the Appellant had slapped Patient A as alleged.[90]Ms Tanchel contended that it was not consistent with the overriding objective to remit the matter given the age of the allegations, the length of time over which the Appellant has been involved in proceedings of various kinds arising out of the incident, the number of times the witnesses have already given evidence about the key issues (which could well adversely impact on the quality of their evidence) and the financial cost to the Appellant of further proceedings.[91]In my judgment these are all potentially powerful arguments, but it is more appropriate that the Appellant advances them in the specialist disciplinary process, as it is recognised that a degree of deference attaches to the Tribunal’s role in assessing arguments of this kind: R (Clinton) v GMC [2017] EWHC 3304 (Admin) at [24], per Choudhury J.[92]I therefore remit paragraph 1a of the Allegation back to the fitness to practise proceedings, to the stage after referral to the MPTS under Rule 8 of the General Medical Council (Fitness to Practise) Rules 2004 (“the 2004 Rules”) but prior to the opening of the hearing before the Tribunal under Rule 17 of the 2004 Rules.[93]This will enable the Respondent to retain the discretion to decide whether or not it is appropriate to proceed to a further hearing, or instead to seek withdrawal of the allegation under Rule 28 of the General Medical Council (Fitness to Practise) Rules prior to any further Tribunal hearing, having regard to the evidence now available and the overarching objective set out in section 1 of the Medical Act 1983. It will also provide the Appellant with the opportunity to argue, before the Tribunal, that the matter should not be re-heard (so advised).[94]I reiterate my thanks to both counsel for the highly professional way in which this appeal was presented.

Cited in 2 later judgments