England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
(ADMINISTRATIVE & DIVISIONAL COURT)
MR JUSTICE UNDERHILL
CO074822005

		C1/2007/0124 Royal Courts of Justice Strand, London, WC2A 2LL
		09/04/2008

Lord Justice Tuckey:

1. This is an appeal by Dr. C. G Gopakumar against a decision of Underhill J. who dismissed his appeal under section 40 of the Medical Act 1983 from a decision of the Fitness to Practise Panel of the General Medical Council to erase his name from the Register.
2. The appellant is a 65 year old GP. He faced two charges of serious professional misconduct relating to female patients, Miss A and Miss B.
3. Miss A alleged that on 14 October 2002 at his surgery in Dewsbury the appellant pulled out her top and looked down her front without warning or her consent. His conduct was alleged to have failed to respect her privacy and dignity and to have been inappropriate. The Panel found this charge proved but it is common ground that this alone would not have justified erasure. No particular point arises out of the Panel's finding on this charge to which I do not need to refer again.
4. Miss B alleged that between 21 January and 18 February 2004 she had been seen by the appellant several times when he was working as a locum at a surgery in Hunslet. He had made inappropriate comments to her such as she was "striking and attractive" and had "nice skin". But her main complaint was that on 18 February he had carried out an abdominal examination in the course of which he had put his hands under her thong and pressed various points across her pubic area to a point as low as the top of her labia. This examination was alleged to have been inappropriate and indecent. The Panel found this charge proved also. This finding and Underhill J's decision to uphold it is challenged on two grounds for which the Vice President and Rix LJ gave permission: first that the character direction given to the Panel by its legal assessor was inadequate and second that Underhill J should have admitted or we should admit further evidence of Miss B's character.
5. Before we embarked on the argument on these grounds Mr Wilby Q.C., who now appears for the appellant, applied for an order for disclosure directed to discovering more about Miss B's character and an adjournment to allow such disclosure to take place. We refused the adjournment for reasons which I will explain after setting out the history of this matter.
6. The four day hearing before the Panel started on 16 August 2004 but for the previous year at least the appellant had been represented by Radcliffes LeBrasseur, the well known medical defence solicitors.
7. In October 2004 Miss B gave authority for her medical records to be disclosed to the appellant. Sometime after this (the date is not clear) records which had been obtained from Miss B's GP were disclosed to the appellant's solicitors. These records included GP notes and other records for the period from March 1999 to February 2004 when Miss B (who was born on 10 August 1982) was aged between 16 and 21. A G.P's note for 8 March 2001 read "Denies using alcohol. Used to drink heavily, smoke cannabis and use amphetamines. No longer doing IVD" and for 19 August 2003 "Ex-cannabis user". It is accepted that IVD is an abbreviation for intravenous drugs. These notes and other records contained no other reference to drugs or treatment for drug abuse.
8. By July 2005 the appellant's solicitors had instructed Miss Christina Lambert, counsel experienced in this field, to represent him at the forthcoming Panel hearing.
9. After a conference with counsel the GMC's solicitors were asked on 20 July to provide "all unused material… together with details of the antecedents of the two complainants". On 12 August they replied sending among other things a bundle of unused material and saying:

Further to your request in relation to the antecedents of the complainants we can confirm the following:

…

[Miss B] – received a police caution in 1999 for being a passenger in a stolen car.

We were told that this information had been derived from the complainant herself. No request had been made to the police or the Criminal Records Bureau.

10. We have a full transcript of the hearing before the Panel. It had come into existence in November 2004 when various changes were made to the structures within the GMC, but under the transitional provisions this hearing took place under the old 1988 Professional Conduct Committee Rules. This Panel comprised two doctors, two lay members and a lay chairman. The legal assessor was a retired circuit judge. Other witnesses as well as the complainants gave evidence including experts (doctors) for the GMC and the appellant.
11. Miss B gave evidence in support of the charge. She was cross-examined politely and skilfully by Miss Lambert. The essence of the case put to Miss B about what had happened on 18 February can be seen from the following questions.

Q. …whilst he accepts that his fingers might have come quite close to… the top of your labia, when he was palpating the creases at the top of your leg, it is not accepted by him that his fingers would have come more than a couple of centimetres away from the top of your labia, where the division begins, just so that you know. What I suggest to you, Miss B, is that in giving that account to the Panel this morning, you are mistaken?

A. No …

Q. Looking back on it Miss B do you think that you might be mistaken about this examination and that you just over reacted?

A: No

Q: You do not.

A: No.

Q: You do not accept that even as a possibility?

A: I know where I was touched and where I was not.

12. When the appellant gave evidence he said he had little or no recollection of the examination, (about which he had made no note), but he was sure he had not touched the areas alleged by Miss B. At the end of his examination in chief the following exchange took place.

Q: Dr Kumar, are you upset that these women were distressed?

A: Yes. That is why I apologised [to Miss A] for what has happened. I heard [Miss B] talking yesterday. She is upset, I know, but she misunderstood. Whatever is going on, I never wanted to cause this.

13. It is clear from the passages in the evidence which I have quoted that it was not suggested that Miss B was lying, merely that she was mistaken. In her closing submissions Miss Lambert said that this was borne out by the fact that Miss B had not left the surgery immediately after the examination and had not complained about what had happened for several days, so for these reasons her evidence was unreliable. It is clear also that Miss Lambert did not attack the credibility of Miss B by relying upon her police caution or the fact that she had been a drug user, although she must have known about this. It is perfectly understandable that she did not do so. The police caution had been given for a minor offence committed when Miss B was 16 or 17; she was no longer taking drugs in 2001 when she was 18 and there was nothing to suggest that she had resumed her habit at any time before February 2004 when she was 21 and living with a partner by whom she had a young child. Relying on such material to cross examine this witness might easily have gone down badly with the Panel and would have sat uneasily with the appellant's expressions of regret for any distress he had caused.
14. At the end of counsels' submissions the legal assessor was asked by the Chairman to remind the Panel of their duties and of any other advice he wanted to give. He gave them general directions about the burden and standard of proof and how they should approach the evidence together with a definition of serious professional misconduct. These directions of law followed those which a judge would give to a jury at the beginning of a summing up in a criminal trial. After the assessor had given this advice Miss Lambert asked whether he might give "the character direction" if he considered it appropriate, pointing out that it had been conceded from the outset that the appellant was of previous good character. The assessor then proceeded to give the direction which is the subject of the first ground of appeal. He said:

…the fact of the matter is that all witnesses are of good character unless the Panel hears to the contrary. It is the position that the doctor is of good character. It is the position that the witnesses are of good character.

Good character is of course relevant. I will go on to say this, yes: good character is relevant in two aspects of matters when you are asked to consider it. It is evidence that you should taken into account in his favour in these two ways: in the first place, as the doctor has given evidence, good character supports his credibility. Good character supports every witness's credibility. The doctor is of good character. His good character supports his credibility. That means it is a factor which you should take into account when deciding whether you believe or disbelieve his evidence, or are not sure.

In the second place, the fact that he is of good character may mean that he is less likely than otherwise might be the case to have acted as it is alleged he has acted in this particular case. Those are matters which you should have regard in his favour. The weight you will give to those two factors is for you to decide.

Mr Chairman that is all I feel it is appropriate to say.

15. At the hearing of his appeal to Underhill J the appellant was represented by different counsel (Robert Jay Q.C.) and solicitors. Such an appeal is by way of re-hearing (CPR Rule 52.11 and Practice Direction para. 22.3 (1) and (2)). A number of grounds of appeal (to which I need not refer) were advanced and rejected by the judge. But the judge allowed Mr Jay to advance the criticism of the character direction as a supplemental ground. He submitted that by saying that the witnesses (who included the complainants), were of good character the assessor had undermined the direction so far as the appellant was concerned. Such a direction would not be given in a criminal trial and there was in fact no evidence that the witnesses were of good character - indeed Miss B was not. Mr Jay further submitted that in a criminal trial the appellant would have been entitled to the enhanced good character direction to the effect that the Panel might think that considerable weight should be given to his good character because he had served as a doctor in the NHS without complaint for over 30 years and was a partner in a busy practice. This made it particularly unlikely that he would have acted as alleged.
16. The judge rejected these submissions. He accepted that the direction would have been unsatisfactory if given in a criminal trial although he did not think that the practice of only drawing attention to the good character of the defendant and not to the witnesses represented any fundamental principle of justice. However the role of a legal assessor assisting a disciplinary panel was not analogous to that of a judge summing up in a criminal trial. The direction dealt adequately with the appellant's good character and reference to the witnesses did not cause him substantive injustice or invalidate the Panel's decision.
17. The hearing of the appeal to the Judge took place on 20 February 2006. Mr Jay's skeleton argument prepared for the purpose of that hearing said:

39. There are additional concerns about Miss B's reliability which the appellant accepts were not fully explored in her evidence. These concerns are derived from a close examination of Miss B's GP records which were made available to the appellant for the Panel hearing. The appellant would seek permission to refer to this material. He understands that the GMC may not agree to this course, and so does not propose to elaborate in these submissions: if permission is granted, the matter may be shortly developed in oral argument.

18. In the event Mr Jay did not pursue this point before the Judge although he did refer to Miss B's police caution. The Judge reserved his judgment and handed it down on Monday 10 April 2006. In the week before he had sent out a draft of this judgment to the parties on the usual terms and in the hope that an agreed order could be made when it was handed down. But on 7 April the court was asked by the appellant himself to adjourn the hand-down because various matters had not been drawn to the attention of the court.
19. By the time the Judge appeared in court on 10 April the appellant had withdrawn his instructions from Mr Jay and his solicitors. He had directly instructed Dr. Arnheim (a member of the Bar), to appear for him. As a matter of courtesy Mr Jay told the court what had happened and said he was happy to remain for the remainder of the hearing, which he did. Dr. Arnheim made a variety of submissions in support of the application for an adjournment including the fact that Miss B's history of drug abuse had not been mentioned before the Panel or the judge. After further argument the judge refused to grant an adjournment. In his judgment about this he started by saying:

Permitting a party to advance further argument after a draft judgment has been circulated would be a most exceptional course, but I would be prepared at least to consider it if I was satisfied that there was a real chance that a miscarriage of justice had occurred. I have accordingly been through Dr Arnheim's written submissions and heard oral argument from him and Mr Englehart directed to establishing whether that is the case. I am satisfied that it is not.

Dealing with the submission about Miss B's medical history revealed by the note for 8 March 2001 he said:

The short answer to that submission is that the notes in question were supplied by the GMC to Dr. Gopakumar's then advisers many months before the hearing. He and his advisors had every opportunity to go through the notes and to decide what use, if any, to make of the material in them. It can, in my view, be inferred completely safely given first that Dr Gopakumar himself would have been able to make to his advisers the points which he now through Dr. Arnheim makes to me; and given also the fact that he had experienced solicitors and counsel in this field - that the significance of this passage was identified and a considered decision was taken not to make use of it before the Panel. Such a decision would have been understandable…

… it is apparent from the skeleton arguments before me that careful consideration was given by Mr Jay as to whether or not to seek to adduce fresh evidence. I understand from Mr Englehart that the indication between solicitors was that the fresh evidence in question was indeed an attempt to rely on the general practitioner notes. It can safely be inferred that part of the notes which Dr. Gopakumar was considering seeking to bring in on the appeal was that which Dr. Arnheim now relies on. In the event the decision was made not to deploy this material on the appeal. In those circumstances there can be no injustice in my refusing to allow it to be introduced now, at the 59^th minute of the 11^th hour.

20. The appellant filed his own notice of appeal to this court which took a host of points. Permission to appeal was refused on the papers by Moses L.J. but renewed orally when limited permission to appeal was given on the two grounds to which we have referred. By this time the appellant was represented by his present solicitors and counsel. After permission was granted the application for disclosure was launched seeking Miss B's medical records for periods not covered by those already disclosed and from other health care bodies and details of the inquiries which the GMC's solicitors had made into her antecedents.
21. We refused the application for further disclosure of medical records and its associated application for an adjournment. However when we were told how the GMC's solicitors had obtained the information about Miss B's antecedents we were concerned and Mr Englehart Q.C. for the GMC undertook that it would make enquires to verify their accuracy. This has now been done by the solicitor for the GMC, Mr Nicholas Turner, but not without difficulty. We are grateful to him for his efforts which have revealed that Miss B has no criminal record so the information given to the appellant's solicitors on 12 August 2005 was accurate.
22. Our reasons for refusing the adjournment are tied up with the second ground of appeal which, as we have said, is that the judge should have admitted or we should admit the evidence of Miss B's police caution and history of drug abuse as fresh evidence.
23. In support of this ground of appeal Mr Wilby submits that the judge was wrong to base his decision solely on the ground that exceptional circumstances had to be shown. He should have looked at all the circumstances to see whether admission of the evidence was justified in the interests of justice. If he had done so he would have admitted it because it was crucially relevant to the issue of Miss B's credibility and the failure to deploy it was largely the result of inadequate disclosure by the GMC. Alternatively Mr Wilby submits that we should admit it for the same reasons.
24. I do not accept these submissions. The judge did not base his decision solely on the ground that no exceptional circumstances had been shown. As can be seen he was prepared to consider the arguments to see whether they showed that there was a real chance that a miscarriage of justice had occurred. After considering them he reached the entirely justified conclusion that the appellant's experienced counsel and solicitors had taken an informed and (for reasons I have already explained in para. 13) understandable decision not to deploy the material which they had before the Panel. It was too late for the appellant to turn round and seek to rely on it before the judge once he realised he had lost on all the other points which had been taken on his behalf. We should not admit this evidence for the same reasons.
25. It is now asserted on behalf of the appellant that he was never consulted by his legal advisers about any of this and did not instruct them to do as they did. I have to say that this seems extremely unlikely, but we cannot and should not resolve any issue about this. For the purpose of considering whether or not to admit fresh evidence the general rule is that failure to adduce evidence by a party's legal advisers provides no excuse even in this type of case (see E v Secretary of State for the Home Department [2004] EWCA Civ 49 at paras 22, 23 and 81, 82 for the continuing applicability of Ladd v Marshall principles).
26. So for these reasons I reject the second ground of appeal. We refused the application for disclosure of further medical records for much the same reasons. The appellant had chosen not to attack Miss B's character based upon her medical history and it was too late for him to attempt to do so now and bolster that attempt by a full scale, unpromising fishing expedition.
27. So I turn to the first ground of appeal. Here Mr Wilby makes much the same submissions as were made before the judge to which I have referred in para 15.
28. A main plank of these submissions is that the proceedings in this case were analogous to criminal proceedings and so the advice to be given by the legal assessor should have followed the directions which a judge in a criminal trial would give to a jury. The charges against the appellant could have been (and initially were) criminal charges of indecent assault so, says Mr Wilby, the analogy was particularly apt in this case. The good character direction is now mandatory in a criminal trial and is given because it is part of the evidence for the appellant (see R v Aziz [1996] 1 AC 41 at 50, 51). The judge is required to direct that good character is relevant to credibility if the defendant has given evidence or relies on statements made to the police (the first limb) and in every case to propensity (the second limb). It is not mandatory to add the positive good character direction to which I have referred. The Judicial Studies Board handbook simply say that "it may be given".
29. The presence of a legal assessor at proceedings before a Fitness to Practise Panel now derives from Schedule 4 paragraph 7 of The Medical Act 1983 (as amended). By 7 (1) such an assessor is required for all such proceedings "for the purpose of advising … on questions of law arising in the proceedings …". 7 (4) enables rules to be made for, among other things, securing that where the assessor advises the Panel on any matter all parties will be informed if the Panel do not accept his advice. By contrast juries are required to follow the directions of the judge on any question of law.
30. The General Medical Council (Legal Assessors) Rules 2004 have been made under paragraph 7 (4). By rule 2 the legal assessor is required to advise on any question of law referred to him and to intervene to advise the Panel where there is a possibility of a mistake of law being made or where he learns of any irregularity in the conduct of the proceedings.
31. So the differences between judge and jury in a criminal trial and members of a Panel and its legal assessor are obvious. The Panel is not a jury. They take legal advice from the assessor but they are not bound to follow it. The assessor is not a judge. He gives legal advice but does not give directions as such and does not sum up the evidence to the Panel.
32. These differences alone show that the analogy with criminal proceedings is not a good one. But this conclusion is confirmed by the two cases relied on by the Judge. Libman v GMC [1972] AC 217 was principally concerned with the test to be applied by the Privy Council (then the appellate body) when considering whether to upset a finding made by the then Disciplinary Committee of the GMC. But at page 221 when summarising the general propositions to be drawn from earlier decisions of the Privy Council Lord Hailsham said:

4. The legal assessor who assists the committee at its hearing is not a judge, and his advice to the committee is not a summing up, and no analogy with a criminal appeal against conviction before a judge and jury can properly be drawn. The legal assessor simply advises the committee … on points of law … The committee under its president are masters both of law and of the facts and what might amount to mis-direction in law by a judge to a jury at a criminal trial does not necessarily invalidate the committee's decision. Where a criticism is made of the legal adviser's… advice the question is whether it can fairly be thought to have been of sufficient significance to the result to invalidate the decision…

In R (Campbell) v GMC [2005] EWCA Civ 250 this court approved Lord Hailsham's propositions as still governing the approach that any court should adopt to decisions made by the then Professional Conduct Committee of the GMC. Mr Wilby argued that things have changed, at least since Libman was decided, because at that time the Disciplinary Committee was comprised entirely of doctors. As a result of the Human Rights Act a lay element has had to be introduced so the committees are now more like juries than they used to be. I do not think this makes any difference. It assumes that doctors have a greater knowledge of the law than the lay members who are now selected to sit on the Panel.

33. So unfettered by any criminal analogy was there anything wrong with the legal assessors direction in this case? Was it unfair? Does it cast doubt upon the Panel's decision?
34. I think the answer to each of these questions is no. Miss Lambert asked for the direction and it is clear from what the assessor said that he gave both limbs of the direction for the appellant. Only the passages "all witnesses are of good character unless the Panel hears to the contrary", "the witness' are of good character" and "good character supports every witnesses credibility" refer to witnesses as well as or other than the appellant. The rest of the direction focuses only on the appellant. The assessor was not obliged to give the enhanced direction (although it is really only a statement of the obvious) and Miss Lambert did not invite him to do so or object in any way to the direction which he did give. I do not think the assessor can be criticised for saying that all witnesses are of good character unless the Panel hears to the contrary. The Panel had not heard to the contrary in this case and there was no reason therefore why they should not treat all witnesses in this way. Why should they assume that the witnesses would not or might not be of good character? Certainly a Judge in a civil trial would not make any such assumption. Of course these were proceedings in which the allegations made had to be proved to a high standard but I do not think this undermines what I have said. The transcript shows that the proceedings were entirely fair and I do not think that the direction casts any doubt upon the Panel's decision.
35. We heard some argument and have received a further submission from Mr Wilby as to whether evidence of the good character of a witness is admissible in civil proceedings. The short answer to this question appears to be: yes if it goes to an issue or to credit but in the latter case there is a general rule against adducing evidence to bolster the credit of a testifying witness in advance of any rebuttable attack on it (see Cross & Tapper on Evidence (11^th Edition) pages 353-4). But it is unnecessary to consider this question further because it is not relevant to this case. There was no character evidence about Miss B. As I have said the assessor was entitled to direct and the Panel was entitled to assume that she was of good character.
36. For these reasons I would dismiss this appeal.

Lord Justice Jacob: I agree.

The Master of the Rolls: I also agree.