“a person’s fitness to practise shall be regarded as impaired for the purposes of this Act by reason only of – (a) misconduct…” misconduct…”
“102. Derived from Ghosh are the following points as to the nature and extent of the section 40 appeal and the approach of the appellate court: i) 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; vi) in the latter event, the appellate court should substitute some other penalty or remit the case to the Tribunal for reconsideration. 103. The courts have accepted that some degree of deference will be accorded to the judgment of the Tribunal but, as was observed by Lord Millett at [34] in Ghosh, “the Board will not defer to the Committee’s judgment more than is warranted by the circumstances”
“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 be unreasonable”: per in Casey at §6 and Warby J (as he then was) in Dutta 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.”
“ iii) The Panel has the benefit of hearing and seeing the witnesses on both sides, which the Court of Appeal does not; iv) The questions of primary and secondary facts and the over-all value judgment made by the Panel, especially the last, are akin to jury questions to which there may reasonably be different answers: Meadows v. General Medical Council [197], per Auld LJ; v) The test for deciding whether a finding of fact is against the evidence is whether that finding exceeds the generous ambit within which reasonable disagreement about the conclusions to be drawn from the evidence is possible: Assucurazioni Generali SpA v. Arab Insurance Group[2003] 1 WLR 577 , [197], per Ward LJ; vi) Findings of primary fact, particularly founded upon an assessment of the credibility of witnesses, will be virtually unassailable: Southall v. General Medical Council[2010] EWCA Civ 407 [“Southall”], [47] per Leveson LJ with whom Waller and Dyson LJJ agreed.”
“The MPT failed to properly remind, advise or caution itself of the proper and full approach to the evidence, documentary and oral; to the evidence of the witnesses; and / or to the credibility of witnesses, in making its determination on the facts.”
“39. There is now a considerable body of authority setting out the lessons of experience and of science in relation to the judicial determination of facts. Recent first instance authorities include Gestmin SGPS SA v Credit Suisse (UK) Ltd[2013] EWHC 3650 (Comm) (Leggatt J, as he then was) and two decisions of Mostyn J: Lachaux v Lachaux[2017] EWHC 385 (Fam) [2017] 4 WLR 57 and Carmarthenshire County Council v Y[2017] EWFC 36 [2017] 4 WLR 136 . Key aspects of this learning were distilled by Stewart J in Kimathi v Foreign and Commonwealth Office[2018] EWHC 2066 (QB) [96]: “i) Gestmin: • We believe memories to be more faithful than they are. Two common errors are to suppose (1) that the stronger and more vivid the recollection, the more likely it is to be accurate; (2) the more confident another person is in their recollection, the more likely it is to be accurate. • Memories are fluid and malleable, being constantly rewritten whenever they are retrieved. This is even true of “flash bulb” memories (a misleading term), i.e. memories of experiencing or learning of a particularly shocking or traumatic event. • Events can come to be recalled as memories which did not happen at all or which happened to somebody else. • The process of civil litigation itself subjects the memories of witnesses to powerful biases. • Considerable interference with memory is introduced in civil litigation by the procedure of preparing for trial. Statements are often taken a long time after relevant events and drafted by a lawyer who is conscious of the significance for the issues in the case of what the witness does or does not say. • The best approach from a judge is to base factual findings on inferences drawn from documentary evidence and known or probable facts. “This does not mean that oral testimony serves no useful purpose… But its value lies largely… in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth”. ii) Lachaux: • Mostyn J cited extensively from Gestmin and referred to two passages in earlier authorities.45 I extract from those citations, and from Mostyn J’s judgment, the following: • “Witnesses, especially those who are emotional, who think they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason, a witness, however honest, rarely persuades a judge that his present recollection is preferable to that which was taken down in writing immediately after the incident occurred. Therefore, contemporary documents are always of the utmost importance…” “…I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective fact proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities…” • Mostyn J said of the latter quotation, “these wise words are surely of general application and are not confined to fraud cases… it is certainly often difficult to tell whether a witness is telling the truth and I agree with the view of Bingham J that the demeanour of a witness is not a reliable pointer to his or her honesty.” • We believe memories to be more faithful than they are. Two common errors are to suppose (1) that the stronger and more vivid the recollection, the more likely it is to be accurate; (2) the more confident another person is in their recollection, the more likely it is to be accurate. • Memories are fluid and malleable, being constantly rewritten whenever they are retrieved. This is even true of “flash bulb” memories (a misleading term), i.e. memories of experiencing or learning of a particularly shocking or traumatic event. • Events can come to be recalled as memories which did not happen at all or which happened to somebody else. • The process of civil litigation itself subjects the memories of witnesses to powerful biases. • Considerable interference with memory is introduced in civil litigation by the procedure of preparing for trial. Statements are often taken a long time after relevant events and drafted by a lawyer who is conscious of the significance for the issues in the case of what the witness does or does not say. • The best approach from a judge is to base factual findings on inferences drawn from documentary evidence and known or probable facts. “This does not mean that oral testimony serves no useful purpose… But its value lies largely… in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth”. ii) Lachaux: • Mostyn J cited extensively from Gestmin and referred to two passages in earlier authorities.45 I extract from those citations, and from Mostyn J’s judgment, the following: • “Witnesses, especially those who are emotional, who think they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason, a witness, however honest, rarely persuades a judge that his present recollection is preferable to that which was taken down in writing immediately after the incident occurred. Therefore, contemporary documents are always of the utmost importance…” “…I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective fact proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities…” • Mostyn J said of the latter quotation, “these wise words are surely of general application and are not confined to fraud cases… it is certainly often difficult to tell whether a witness is telling the truth and I agree with the view of Bingham J that the demeanour of a witness is not a reliable pointer to his or her honesty.” iii) Carmarthenshire County Council: • The general rule is that oral evidence given under cross-examination is the gold standard because it reflects the long-established common law consensus that the best way of assessing the reliability of evidence is by confronting the witness. • However, oral evidence under cross-examination is far from the be all and end all of forensic proof. Referring to paragraph 22 of Gestmin, Mostyn J said: “…this approach applies equally to all fact-finding exercises, especially where the facts in issue are in the distant past. This approach does not dilute the importance that the law places on cross- examination as a vital component of due process, but it does place it in its correct context. 45 The dissenting speech of Lord Pearce in Onassis and Calogeropoulos v Vergottis[1968] 2 Lloyd’s Rep 403 , 431; Robert Goff LJ in Armagas Ltd v Mundogas SA[1985] 1 Lloyd’s Rep 1 , 57.”
“The best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses' recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts.” 99. That is a theme which has been repeated since by many judges. I would not myself wholly agree with it, based on the science.”
“Conclusion 100. I would finish where I started, by emphasising that generally human memory is remarkably accurate and recollection is a very valuable tool in determining what happened and why it happened. A 2019 paper by Professor Brewin and another published in the Criminal Law Review argues convincingly that the pendulum may have swung too far in the direction of dismissing memory as a useful and reliable tool in court.”
“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.”
“No judge would consider it proper to reach a conclusion about a witness’s credibility based solely on the way that he or she gives evidence, at least in any normal circumstances. The ordinary process of reasoning will draw the judge to consider a number of other matters, such as the consistency of the account with known facts, with previous accounts given by the witness, with other evidence, and with the overall probabilities. However, in a case where the facts are not likely to be primarily found in contemporaneous documents the assessment of credibility can quite properly include the impression made upon the court by the witness, with due allowance being made for the pressures that may arise from the process of giving evidence.”
“The MPT failed to apply the proper and full approach to the evidence, documentary and oral; to the evidence of the witnesses; and / or to the credibility of witnesses, in making its determination on the facts.”
“The Tribunal had particular regard to Patient A’s medical records and the entries made by Dr Demanya when he assessed Patient A at 03:00 on26 February 2019 . The medical record in relation to Patient A, the ‘Cas Card’, exhibit MA4, was central to the evidence as to what diagnosis was made by Doctor Demanya, what treatment was ordered and administered and when this occurred.”
“In respect of the outstanding paragraphs of the Allegation, the Tribunal considered them separately and evaluated all the evidence in relation to each element to make its findings on the facts.”
“Patient A’s medical records and the entries made by Dr Demanya when he assessed Patient A at 03:00 on26 February 2019 . The medical record in relation to Patient A, the ‘Cas Card’, exhibit MA4, was central to the evidence as to what diagnosis was made by Doctor Demanya, what treatment was ordered and administered and when this occurred.”
“Q What was the gist of that discussion with him? A So, I explained to him I’ve just seen this lady and I’ve got some concerns about the way she’s being managed and he sort of said, “What do you mean?” and I said, “Well, this lady is really unwell and she’s got sepsis”, and he said, “Oh, really?” like that. Q Was that, in your impression, that he was surprised --- A Yes. Q --- that you’d made a diagnosis of sepsis? A Yes, absolutely. Q What did he volunteer after that? A He was quite hesitant. I could tell he was a little bit nervous.”
“On the basis of all the evidence before it, and in the absence of any clear or objective evidence that Dr Demanya had indeed diagnosed sepsis or severe infection, the Tribunal concluded that on26 February 2019 , Dr Demanya failed to make a specific diagnosis of severe infection. It therefore found paragraph 1a(i) of the Allegation proved.”
“In any event, having reviewed the FBC results and printed them off at 03.42, I then subsequently returned to the cubicle and added prescriptions for two IV antibiotics (being 1g of Amoxicillin and 500mg of Metronidazole) to treat the sepsis, as fourth and fifth entries on the drug chart.”
“15. Between 3.30am and 4.00am, I went on my break. At approximately 4.00am on return from my break, I spoke to Nurse Roberts who told me she had connected the IV paracetamol to Patient A. (emphasis added by the Tribunal) 19. The IV paracetamol had finished before Patient A went for her x-ray. At approximately 5.50am I mentioned to Dr Demanya that Patient A’s blood pressure was still very low. I said to Dr Demanya, the previous IV saline bag is finished I asked can you prescribe another bag of Iv saline I signed the prescription chart and Nurse Roberts co-signed. There was no IV antibiotics on the prescription chart at this stage. I then connected a new IV saline to Patient A.”
“Dr Demanya was at the nursing station writing notes on the pages in the middle of the triage note. He stopped writing so I could sign the medication page to say I had given the patient paracetamol. The medication page is the back page of the triage note. On the medication page I saw ‘paracetamol’ and ‘saline’. I definitely didn’t see ‘antibiotics’ written on the form at this time as I would have offered to get them because Nurse Usifoh wouldn’t have been able to get them out of the cupboards.”
“I would have expected Dr Demanya to have prescribed the antibiotics at the same time as the Paracetamol and saline at approx. 3:30am. It is certainly desirable to prescribe the antibiotics within one hour of assessment which would be by 04:00am.”
“I am unable to explain why further i.v. fluids were administered at this point, but not antibiotics. I seem to recall that the i.v. fluids were stored separately to the antibiotics, and I therefore wonder if it was because access to the antibiotics was more restricted.”
“On consideration of all the evidence the Tribunal determined it was more likely that Dr Demanya had not prescribed the antibiotics by 05:50, almost three hours after his initial assessment of Patient A. It therefore found paragraph 1(a)(iii)(2) of the Allegation proved.”
“53. On consideration of all the evidence the Tribunal determined it was more likely that Dr Demanya had not prescribed the antibiotics by 05:50, almost three hours after his initial assessment of Patient A. It therefore found paragraph 1(a)(iii)(2) of the Allegation proved.”
“54. It was clear that at some point after 05:50, and before it was crossed out, Dr Demanya wrote a prescription for antibiotics. The Tribunal could find no evidence to determine when this happened or for how long the prescription stood. In the absence of such evidence, the Tribunal determined that the GMC had not discharged its burden of proof in relation to paragraph 1(a)(iii)(1). It therefore found paragraph 1(a)(iii)(1) of the Allegation not proved.”
“39. In his statement for the coroner and in evidence under oath at the inquest Dr Demanya maintained explicitly that he prescribed antibiotics after his initial assessment of Patient A at 03:00. This was at the same time that he prescribed intravenous fluids and paracetamol. 40. At the inquest, and before this Tribunal, Nurse Roberts stated that when she administered the paracetamol there was no prescription for antibiotics written up and outstanding. She was clear that had there been, she would have administered it. She signed the prescription on the Cas Card to show she administered the paracetamol at 03:37, this is witnessed by a colleague. 41. In his statement prepared for these proceedings, and in his evidence to the Tribunal, Dr Demanya stated that following his evidence at the Inquest he remembered that it was in fact after Nurse Roberts administered the paracetamol that he first wrote up the prescription for antibiotics. This was done after he saw the blood results at around 03:40. 42. The Tribunal heard from Dr Demanya that it was on later reflection as he recalled his conversation with Dr Atkinson, and in particular the discussion he claims they had regarding antibiotics, that his memory was ‘jogged’. In defending his prescription of antibiotics to Dr Atkinson he invoked the blood results and realises now they would not have been available at the time he first stated he prescribed, so it must have been later. He now remembers it was in fact when he saw those results that he did add the antibiotic prescription to the Cas Card. 43. The Tribunal noted: • Dr Atkinson does not accept that this discussion took place as stated, and claims that it is inherently illogical that he would challenge or question a prescription for antibiotics if given the information Dr Demanya claims; • The medical evidence is consistent that whilst the blood results supported or ‘bolstered’ a decision to prescribe antibiotics, it was not necessary or clinically prudent to await those results if sepsis was suspected; • It is convenient for Dr Demanya to be able to explain away the fact that Nurse Roberts stated at the inquest there was no prescription for antibiotics at 03:37; • It would be surprising in the extreme if Dr Demanya was so mistaken about something so central to a matter under serious investigation by the Trust and the Coroner. The Tribunal noted he stated that he had only limited access to the notes, however he travelled from London to Glamorgan specifically to write the statement, has provided no evidence he was not granted access to any documents which he requested or was under undue or unfair time pressures, and he was clearly aware of the importance of what he was stating.”
‘88. I included catheterisation and urinary output monitoring in my treatment plan. This was recorded at my 03:00 assessment of Patient A; and I chased the nurses several times when I realised Patient A had not been catheterised.’ 61. During his oral evidence to the Tribunal, Dr Demanya maintained this account. He told the Tribunal that he wrote the treatment plan for Patient A at around 03:15 after he assessed her at 03:00, and that he included in it that she should be catheterised. Dr Demanya added that he asked the nursing staff on several occasions throughout the shift to catheterise Patient A. 62. The Tribunal had regard to Dr Atkinson’s statement, dated17 December 2021 , inrelation to his second conversation with Dr Demanya at 06:30. At paragraphs 17 and 18 he stated that he asked whether the patient was passing urine and ‘Dr Demanya was unsure’
“Around this time perhaps at 7.00am, while Dr Michael Atkinson (whom I recall from the Inquest) came and reviewed the patient and asked me had the patient passed urine or had a bladder scan. I said no she had not passed urine, but had watery stool twice to my knowledge. Dr Atkinson then told me she needs to be catheterised. I asked one of the night staff to please get me a catheterisation kit while I was still trying to cannulate. The nurse said I shouldn’t worry, the morning team are here. The only person that asked me to catheterise Patient A was Dr Atkinson.”
“In his evidence to the Tribunal, Dr Demanya said that he performed a ‘top to toe’ examination of Patient A at 05:00, following her fall. However, either he did not notice that a catheter had not been fitted as he had requested or took no effective action as a result. This would have been nearly two hours after he had first requested it be done. The Tribunal considered it would have been obvious to Dr Demanya that a catheter had not been fitted. It appeared to the Tribunal highly unlikely that if catheterisation was an integral part of Dr Demanya’s initial treatment plan he would have taken no decisive action at this time. There is also no evidence that, having ordered monitoring as he claims, he ever inquired as to Patient A’s intake/output monitoring data. It is clear that a catheter was only fitted after 06:30 after Dr Atkinson had inquired whether Patient A had passed urine.”
“In the circumstances, the Tribunal determined, on the balance of probabilities, that Dr Demanya did not include catheterisation as part of his treatment plan for Patient A and therefore found paragraph 1(a)(iv)(2) of the Allegation proved.”
“Paragraph 1(c) 1. On26 February 2019 you were involved in the care of Patient A at Royal Glamorgan Hospital and you: c. crossed out the antibiotic prescriptions in Patient A’s prescription chart without a valid reason for doing so; 80. In his statement, dated16 February 2023 , at paragraphs 101 and 102 stated: ‘101. I did not cross out my antibiotic prescriptions and I particularly reiterate the matters set out at paragraphs 61 to 63 above. As explained above, if I was going to cancel a prescription, I would put a line through it, initial or sign this, date and time it, and then explain my reason for doing so in the records. 102. In the event, I had no reason for cancelling the antibiotics I had prescribed given my diagnosis of sepsis and my view that immediate antibiotic treatment was required.’ 81. During his evidence to the Tribunal Dr Demanya maintained that he had included antibiotics as part of his treatment plan for Patient A. He said that he had repeatedly chased up with the nursing staff as to why the antibiotics had not been administered. 82. The Tribunal reminded itself that Dr Demanya originally stated he had written the prescription directly after the 03:00 examination. His evidence in his statement and before the Tribunal was that it was written at 03:40. He accepts that at the time when Dr Atkinson arrived antibiotics had not been administered.”
“83. In paragraph 24 of her statement, Nurse Usifoh stated: ‘24. Dr Demanya came into Patient A’s room with prescription chart while I was attempting to cannulate, he showed me the prescription chart between 07:15am and 07:20am with IV antibiotic written on the chart. On the prescription chart the antibiotics amoxicillin and metronidazole had been added to the chart. I didn’t see Dr Demanya writing those antibiotics down. Dr Demanya then said ‘the morning team are here, and they are arranging to take Patient A to resuscitation unit. They can cannulate’, I then saw him cross out the antibiotics on the prescription chart. When he was crossing it out I said ‘No, don’t. I am trying to cannulate her and I can give the antibiotics when I insert the cannula’ but he crossed out the medications. Please find that prescription chart attached as Exhibit LU4.’” ‘24. Dr Demanya came into Patient A’s room with prescription chart while I was attempting to cannulate, he showed me the prescription chart between 07:15am and 07:20am with IV antibiotic written on the chart. On the prescription chart the antibiotics amoxicillin and metronidazole had been added to the chart. I didn’t see Dr Demanya writing those antibiotics down. Dr Demanya then said ‘the morning team are here, and they are arranging to take Patient A to resuscitation unit. They can cannulate’, I then saw him cross out the antibiotics on the prescription chart. When he was crossing it out I said ‘No, don’t. I am trying to cannulate her and I can give the antibiotics when I insert the cannula’ but he crossed out the medications. Please find that prescription chart attached as Exhibit LU4.’”
“38. In any event, I regret to say, in my judgment the Tribunal’s reasoning process is vitiated by at least three fundamental errors of approach. First, the Tribunal approached the resolution of the central factual dispute by starting with an assessment of the credibility of a witness’s uncorroborated evidence about events ten years earlier, only then going on to consider the significance of unchallenged contemporary documents. Secondly, the Tribunal’s assessment of the witness’s credibility was based largely if not exclusively on her demeanour when giving evidence. Thirdly, the way the Tribunal tested the witness evidence against the documents involved a mistaken approach to the burden of proof and the standard of proof.”
“43. … When deciding what to make of the apparent mismatch between its impressionistic assessment of Patient A and the contemporaneous documents, the Tribunal’s approach was to ask itself whether the documentation was “determinative”, and such as to “preclude” the novel case theory which the Tribunal came to adopt. This was, in effect, to require Dr Dutta to establish to the criminal standard a defence to the Charge (and to an amended version of the Charge, which had not been put to him). The Tribunal’s task was, however, to assess the evidence in the round and decide whether the GMC had discharged the burden of showing that it was more likely than not that pressure was applied by means of a discount offer, for financial motives, as alleged in Charges 1(a) and 2.”
“I remind myself that the assessment of the evidence is primarily for the Tribunal, and the appellate role is subject to the constraints I have mentioned.”) In this court’s appellate capacity, I judge that Dr Demanya’s criticisms of the Decision do not come close to establishing that the Tribunal’s findings are “so out of tune” with the evidence to be “unreasonable”
“Standard of Proof The MPT failed to properly remind, advise or caution itself of the proper approach to the Standard of Proof and the flexible requirements for cogent evidence and / or it did not apply the proper approach to the Standard of Proof, in making its determination on the facts.”
“… Built into the preponderance of 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, 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.”
“62. Although there is a single civil standard of proof on the balance of probabilities, it is flexible in its application. In particular, the more serious the allegation or the more serious the consequences if the allegation is proved, the stronger must be the evidence before a court will find the allegation proved on the balance of probabilities. Thus the flexibility of the standard lies not in any adjustment to the degree of probability required for an allegation to be proved (such that a more serious allegation has to be proved to a higher degree of probability), but in the strength or quality of the evidence that will in practice be required for an allegation to be proved on the balance of probabilities. 63. The flexibility that exists in the application of the standard is clear from In re H (Minors) (Sexual Abuse: Standard of Proof)[1996] AC 563 itself, where Lord Nicholls, whilst affirming the existence of a single civil standard, stressed, at p 586 f , that it had “a generous degree of flexibility” in respect of the seriousness of the allegation (see also his reference, at p 587 e , to “the in-built flexibility already mentioned”).”
“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.”
“… it does not follow, as a rule of law, that the more serious the allegation, the less likely it is to have occurred. So whilst the court may take account of inherent probabilities, there is no logical or necessary connection between seriousness and probability. Thus, it is not the case that "the more serious the allegation the more cogent the evidence need to prove it".”
“I think that the time has come to say, once and for all, that there is only one civil standard of proof and that is proof that the fact in issue more probably occurred than not.”
“Finally, I should say something about the notion of inherent probabilities. Lord Nicholls said, in the passage I have already quoted, that: “… the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability.”
“The MPT failed to properly address or take account of specific aspects of the evidence and / or did not properly address the submissions made to it in respect of these matters.”
“the Tribunal bore in mind the concerns expressed by the Doctor’s counsel regarding Nurse Usifoh’s evidence, her record keeping and the accuracy of some statements she makes. The Tribunal noted this and shared some of the concerns. However, it was of the view that whilst her system of recording was far from ideal, it should be noted she was not aware she was compiling them for legal proceedings. Her actions in creating a new note from the old and disposing of the first, ill-advised as they may have been, were not covert in that she told Dr Conway what she was doing. The material inaccuracies were seen by the Tribunal as markers as to the level of reliance that could be placed on her regarding detail, but not of themselves indicators of dishonesty. The Tribunal therefore bore all this in mind when considering her evidence and sought corroboration where possible.”
“84. The inference put before the Tribunal is that Nurse Usifoh was not telling the truth, and that she crossed out the prescription to cover for her failure to administer the prescription. The Tribunal has already noted its concern as to the reliability of some details of Nurse Usifoh’s account, and the manner of her record keeping. However, it found no evidence to question her integrity and honesty.”
“84. … On the contrary the Tribunal bore in mind the significant changes in Dr Demanya’s account of the writing of the prescription. It had found that he did not include catheterisation as part of his initial treatment plan as he has claimed. The Tribunal noted that at the time Nurse Usifoh states she saw Dr Demanya cross out the prescription for antibiotics, he would have been aware that his care and treatment of Patient A was likely to be questioned. 85. On the other hand, the Tribunal gives proper regard to Dr Demanya’s good character and recognises the force in the argument put forward by his counsel that it would make little sense for him to cross out the prescription if he had just written it. The Tribunal has avoided speculating as to the actors’ intent and motive, but was aware that at this point Dr Demanya had recently had a conversation with Dr Atkinson at 06:30 and that Dr Atkinson had raised concerns about the care and treatment of Patient A. It was the Tribunal’s view that as Nurse Usifoh stated she witnessed Dr Demanya cross out the prescription there was a binary choice: she gave a false account to cover her own actions, or he did. Taking into account all the circumstances of the morning as the evidence had established them to have happened, the Tribunal was of the view that on the balance of probabilities it was more likely that Nurse Usifoh was telling the truth and that Dr Demanya did cross out the prescriptions for the antibiotics.”
“The GMC’s case is that not only were [the antibiotics] not prescribed at the time, or any effective way later, but that they were seen by a witness being crossed out by Dr Demanya at the time when the patient was being handed over to the incoming dayshift and when Dr Demanya was going to relinquish control of her care. He, knowing that she had not had the antibiotics, say the GMC, crossed out the mention of them on the “Drugs Administered in Department” chart. That must have been done, in my submission, after the second lot of saline was prescribed, because of the order in the list when they were written, which means that was afterwards, and they must have been crossed out after they were written. The Tribunal will be better able than I to puzzle out exactly what those antibiotics are, but it doesn’t make any difference. Nobody’s suggesting that if they had been prescribed, they wouldn’t have been the right thing, what is suggested is that they were never prescribed, and this is all part of a cover-up, because by the item those entries were written, and by the time they were crossed out, Dr Demanya had become conscious of the fact that his care of Patient A had been, to say the least, suboptimal. In fact, the GMC’s case is that Dr Demanya did really nothing effective to treat Patient A in her condition.”
“Q If Dr Demanya had said to you at that time, when you were administering the paracetamol, when he asked you to do so, “I think it is possible sepsis” or he mentioned sepsis, what would you have done? A I would have made sure that the antibiotics and things were written up. I would have started the bundle 6 or I would have had Lilian to start the bundle 6 for that. Q The fact that that didn’t start, does that suggest to you that Dr Demanya didn’t raise with you a suspicion of sepsis? A Yes, he didn’t.”
“24. Dr Demanya came into Patient A’s room with prescription chart while I was attempting to cannulate, he showed me the prescription chart between 07:15am and 07:20am with IV antibiotic written on the chart. On the prescription chart the antibiotics amoxicillin and metronidazole had been added to the chart. I didn’t see Dr Demanya writing those antibiotics down. Dr Demanya then said ‘the morning team are here, and they are arranging to take Patient A to resuscitation unit. They can cannulate’, I then saw him cross out the antibiotics on the prescription chart. When he was crossing it out I said ‘No, don’t. I am trying to cannulate her and I can give the antibiotics when I insert the cannula’ but he crossed out the medications. Please find that prescription chart attached as Exhibit LU4.”
“THE WITNESS: Correct. I don’t know who signed; I can’t remember who signed the other one; that signature, I am not sure what it looks like. THE CORONER: Mr Morse, any more questions. MR MORSE: Sir, you are aware of where the conflict in the evidence is and without putting it bluntly between the two, it is a matter for you sir. THE CORONER: I think you need to put that to the witness. MR MORSE: Yes. Nurse, what I suggest is that the entries that we see at page 11 in terms of the prescriptions were there at three o’clock in the morning. A The IV paracetamol – sorry, the IV antibiotics? Q Yes. A No, it wasn’t there. I didn’t see it and if it was there when Claire, as the nurse-in-charge, knowing the state of the patient and she has seen that IV paracetamol is being prescribed, that should be the question; because I know when a patient comes in with sepsis, even before they transfer a patient to the unit they start IV fluid, IV antibiotics. All hands would be on deck before the patient is being moved. She was aware that the patient came in with sepsis and seeing that – let us assume if IV paracetamol was there, when she brought out the IV paracetamol she would have given that IV antibiotics, but she didn’t give it because it was not there.”
“Taking into account all the circumstances of the morning as the evidence had established them to have happened, the Tribunal was of the view that on the balance of probabilities it was more likely that Nurse Usifoh was telling the truth and that Dr Demanya did cross out the prescriptions for the antibiotics.”
“The MPT’s reasons are inadequate and / or procedurally unfair.”
“The Sanction imposed by the MPT was wrong and/or procedurally unfair.”
“108 Erasure may be appropriate even where the doctor does not present a risk to patient safety, but where this action is necessary to maintain public confidence in the profession. For example, if a doctor has shown a blatant disregard for the safeguards designed to protect members of the public and maintain high standards within the profession that is incompatible with continued registration as a doctor.”
“109 Any of the following factors being present may indicate erasure is appropriate (this list is not exhaustive). A A particularly serious departure from the principles set out in Good medical practice where the behaviour is fundamentally incompatible with being a doctor. B A deliberate or reckless disregard for the principles set out in Good Medical practice and/or patient safety. D Abuse of position/trust (see Good medical practice, paragraph65:‘You must make sure that your conduct justifies your patients’ trust in you and the public’s trust in the profession’). … H Dishonesty, especially where persistent and/or covered up (see guidance below at paragraphs 120–128). I Putting their own interests before those of their patients (see Good medical practice paragraph 1: – ‘Make the care of [your] patients [your] first concern’ and paragraphs 77–80 regarding conflicts of interest).”
“The Tribunal is the final arbiter of sanction but should bear in mind the guidance of Sir Thomas Bingham MR in Bolton v Law Society[1994] 1 WLR 512 at 598) [51] that ‘in cases of significant professional dishonesty, mitigation has a necessarily limited role.’ The Tribunal was also directed to the case of Nkomo v GMC2019 EWHC 2625 (Admin), which states that whilst dishonesty is generally difficult to remediate and serious, particularly where sustained and covered up, each case should be considered on its own individual facts and a finding of dishonesty does not automatically mean that a doctor’s fitness to practise must be impairedor that erasure must follow.”
“188. For these reasons, the Tribunal was of the view that Dr Demanya’s misconduct of itself was of such a serious nature that it was ‘fundamentally incompatible with [his] continued registration’ (SG 97(a)) and that, accordingly, suspension was not an appropriate sanction. However, it then went on to consider Mr Mellor’s submission that there was sufficient mitigation to justify suspension instead of erasure.”
“Rather than admit a potential error, Dr Demanya embarked on a sustained ‘cover up’, which was fundamentally at odds with the professional standards he was required to display, and that inevitably diverted blame to his colleagues. The Tribunal was of the view that for this reason there remained a risk, albeit low, that such behaviour could be repeated if similar circumstances presented.”
“the inherent seriousness of Dr Demanya’s misconduct in falsifying Patient A’s notes and giving false testimony under oath fundamentally undermined public trust in the profession, and that any sanction other than erasure would not appropriately promote and maintain professional standards.”
“193. The Tribunal determined that Dr Demanya had seriously undermined public confidence in the profession and had brought the profession into disrepute. It was also of the view that there remained a risk to public safety … the Tribunal found that all three elements of the overarching objective were engaged in their decision as to the appropriate sanction. The Tribunal therefore determined for these reasons that it was necessary to erase Dr Demanya’s name from the register to protect the wellbeing of the public, promote and maintain public confidence in the profession and to maintain proper professional standards.”
“(1B) The pursuit by the General Council of their over-arching objective involves the pursuit of the following objectives— (a) to protect, promote and maintain the health, safety and well-being of the public, (b) to promote and maintain public confidence in the medical profession, and (c) to promote and maintain proper professional standards and conduct for members of that profession.”
“It seems to me that an accused professional has the right to advance any defence he or she wishes and is entitled to a fair trial of that defence without facing the jeopardy, if the defence is disbelieved, of further charges or enhanced sanctions.”
“There are, of course, numerous authorities emphasising the public interest in maintaining the standards and reputations in the professions. The importance of honesty to the health and care professions is underlined by the fact that striking off may be an appropriate sanction under the indicative sanctions guidance. It will often be proper, even in cases of one-off dishonestly (see Nicholas-Pillai v GMC[2009] EWHC 1048 (Admin) at paragraph 27). It has been said that where dishonest conduct is combined with a lack of insight, is persistent, or is covered up, nothing short of striking off is likely to be appropriate (see Naheed v GMC[2011] EWHC 702 (Admin) ).”
“(v) In regulatory proceedings the appellate court will not have the professional expertise of the Tribunal of fact. As a consequence, the appellate court will approach Tribunal determinations about whether conduct is serious misconduct or impairs a person's fitness to practise, and what is necessary to maintain public confidence and proper standards in the profession and sanctions, with diffidence: see Fatnani at paragraph 16; and Khan v General Pharmaceutical Council[2016] UKSC 64 ;[2017] 1 WLR 169 , at paragraph 36. (vi) However there may be matters, such as dishonesty or sexual misconduct, where the court "is likely to feel that it can assess what is needed to protect the public or maintain the reputation of the profession more easily for itself and thus attach less weight to the expertise of the Tribunal …": see Council for the Regulation of Healthcare Professionals v GMC and Southall[2005] EWHC 579 (Admin) ; [2005] Lloyd's Rep. Med 365 at paragraph 11, and Khan at paragraph 36(c). As Lord Millett observed in Ghosh v GMC[2001] UKPC 29 ;[2001] 1 WLR 1915 and 1923G, the appellate court "will afford an appropriate measure of respect of the judgment in the committee … but the [appellate court] will not defer to the committee's judgment more than is warranted by the circumstances". (vii) Matters of mitigation are likely to be of considerably less significance in regulatory proceedings than to a court imposing retributive justice, because the overarching concern of the professional regulator is the protection of the public.”