QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| DR ANTHONY CHYC
|- and -
|GENERAL MEDICAL COUNCIL
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Martin Chamberlain (instructed by GMC Legal) for the Respondent
Hearing dates: 6th and 7th May 2008
Crown Copyright ©
Mr Justice Foskett :
i) dismiss the appeal;
ii) allow the appeal and quash the direction or variation appealed against;
iii) substitute for the direction or variation appealed against any other direction or variation which could have been given or made by the committee concerned; or
iv) remit the case to the committee concerned to dispose of the case in accordance with the directions of the court.
"Because it does not itself hear the witnesses give evidence, the court must take into account that the Disciplinary Committee was in a far better position to assess the reliability of the evidence of live witnesses where it was in issue. In that respect, this court is in a similar position to the Court of Appeal hearing an appeal from a decision made by a High Court Judge following a trial. There is, however, an important difference between an appeal from a High Court Judge and an appeal from a Disciplinary Committee. The Disciplinary Committee possesses professional expertise that a High Court judge lacks . This court appreciates that such a Disciplinary Committee is better qualified to assess evidence relating to professional practise, and the gravity of any shortcomings, and it therefore accords the decision of the Committee an appropriate measure of respect, but no more: see Ghosh v General Medical Council  UKPC 29,  1 WLR 1915, at  and  and Preiss v General Dental Council  UKPC 36,  1 WLR 1926 at  and . These decisions make it clear that the court should be more ready to overrule a disciplinary tribunal than previously appeared to be the case. It however remains the position that an appellant must establish an error, of law or fact or of judgment, on the part of the tribunal."
"[T]he obvious fact [is] that the appeals are conducted on the basis of the transcript of the hearing and that, unless exceptionally, witnesses are not recalled. In this respect, these appeals are similar to many other appeals in both civil and criminal cases from a judge, jury or other body who has seen and heard the witnesses. In all such cases the appeal court readily acknowledges that the first instance body enjoys an advantage which the appeal court does not have, precisely because that body is in a better position to judge the credibility and reliability or the evidence given by the witnesses. In some appeals that advantage may not be significant since the witnesses' credibility and reliability are not in issue. But in many cases the advantage is very significant and the appeal court recognises that it should accordingly be slow to interfere with the decisions on matters of fact taken by the first instance body. This reluctance to interfere is not due to any lack of jurisdiction to do so. Rather, in exercising its full jurisdiction, the appeal court acknowledges that, if the first instance body has observed the witnesses and weighed their evidence, its decision on such matters is more likely to be correct than any decision of a court which cannot deploy those factors when assessing the position. In considering appeals on matters of fact from the various professional conduct committees, the Board must inevitably follow the same general approach. Which means that, where acute issues arise as to the credibility or reliability of the evidence given before such a committee, the Board, duly exercising its appellate function, will tend to be unable properly to differ from the decisions as to fact reached by the committee except in the kinds of situation described by Lord Thankerton in the well known passage in Watt or Thomas v Thomas  A.C. 484, 484-488."
The passage from Lord Thankerton's opinion is as follows:
"I do not find it necessary to review the many decisions of this House, for it seems to me that the principle embodied therein is a simple one, and may be stated thus: I. Where a question of fact has been tried by a judge without a jury, and there is no question of misdirection of himself by the judge, an appellate court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that 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 conclusion; II. The appellate court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence; III. The appellate court, either because the reasons given by the trial judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court. It is obvious that the value and importance of having seen and heard the witnesses will vary according to the class of case, and, it may be, the individual case in question."
"As it seems to me the fact that a principal purpose of the Panel's jurisdiction in relation to sanctions is the preservation and maintenance of public confidence in the profession rather than the administration of retributive justice, particular force is given to the need to accord special respect to the judgment of the professional decision-making body in the shape of the Panel."
i) That during a domiciliary visit to Ms P on 30 April 1990 the Appellant behaved improperly and abused his position of trust by fondling her breast during an examination and asking if he could kiss her.
ii) That on an occasion in 1998 (by which time the Appellant was in practice in Colchester) he behaved indecently and inappropriately towards Mrs A, the Practice Manager, who at the time was undergoing matrimonial difficulties, by embracing her, rubbing his hand in a circular motion on her back and pressing his erect penis against her.
iii) In the period from May 1999 to December 2002, the Appellant failed to refer a total of 22 patients to specialist practitioners when they should have been so referred.
iv) In the period from April 1997 to December 2002 the Appellant mismanaged documents relating to 66 patients by failing to file them properly.
"The finding of fact in respect of the complaint by [Ms P] was unsupported by adequate reasons and/or was perverse. In particular:(a) the Panel failed to address the effects of delay of 7 years between the alleged assault and Ms P's first report of the same or the delay of 16 years between the alleged assault and the hearing before them,
(b) they failed to address at all the gaps, errors and contradictions in her evidence;
(c) they failed to explain how they were able to accept her account of the assault and the resulting loss of trust in the Appellant as her GP given that she returned to see him in that capacity two days later and on a dozen or more occasions thereafter;
(d) they failed to address the uncontroverted evidence that within three months of reporting the alleged assault, Ms P was suffering a psychotic illness, the effects of which had been noticed by her daughter three months before."
i) she had seen the Appellant approximately 5 months before the incident at the Surgery when he examined her back;
ii) about 3 months before the incident her father had died and the Appellant had been very kind and supportive on an occasion she had been to the Surgery;
iii) after the incident she "did not want [the Appellant] to come to [her] home again".
In answer to a question from Mr Garnham in cross-examination she agreed that, since the incident caused her to lose her trust in the Appellant, she would not have wanted to put herself in a position when he might act in a similar way again.
Mr Garnham: I want to make sure you understand that Dr Chyc does not dispute that he saw you on 30 April 1990. What I want to put to you is that beyond the ordinary medical examination, which was either in the Surgery or at your home, nothing untoward took place. Answer: I wish that was the case, but no, that is not the truth.
Mr Garnham: but what I have to suggest to you is that there was no assault, he did not grope you in the way you have described and he did not ask to kiss you. Answer: He most certainly did."
And then a little later at the conclusion of the cross-examination
Mr Garnham: Finally, Ms P, what I have to suggest to you is that the description of events you give for 30 April is the product, I would suggest to you, of the mental health difficulties you had subsequently and, although there was a consultation with Dr Chyc on that day, nothing improper occurred during it and what you say happened is a produce of the mental health difficulties you have had since. Answer: Not at all. It was Dr Chyc and I know what happened that day."
"Mrs A's evidence was entirely convincing and cogent and its credibility supported by the doctor's recognition that she appeared to be uncomfortable. The Panel accepted her evidence that the nature and proximity of this encounter differed from any previous embrace between the doctor and Mrs A."
The finding of fact in respect of the complaint by Mrs A was unsupported by adequate reasons and/or was perverse. In particular, the Panel:
(i) The Panel gave as the reason for accepting Mrs A's evidence that it "was entirely convincing and cogent and its credibility is supported by the doctor's recognition that she appeared to be uncomfortable. The Panel accepted her evidence that the nature and proximity of this encounter differed from any previous embrace between the doctor and Mrs A", when there was no challenge to Mrs A's truthfulness; it being contended that she was mistaken, not lying;
(ii) They failed to explain why they rejected the evidence of Dr Chyc that Mrs A's account may have been explained by mistake, given his habit on occasions of carrying a key fob in his pocket, the shape and size of which may have been mistaken for an erection;
(iii) They failed to explain how they were able to be satisfied to the criminal standard that Mrs A had been assaulted by the Appellant pressing his erection against her when she agreed in cross-examination that "it is at least a possibility" that she was mistaken.
"I am acutely conscious of the fact that this is not easy for you, and I want to give you what reassurance I can. On instructions from Dr Chyc I am not going to be suggesting to you that you have come here to mislead the Tribunal; I am not going to be suggesting you have come here to deliberately lie. Nothing that you have said today am I going to challenge on the basis that you are telling untruths right?"
Q: Dr Chyc will say that, when you embraced, he had no erection and he cannot remember whether he had something in his pocket that might have made you think it was an erection, but he often carried that at the time which is a remote control device for his burglar alarm at home. (Indicating)
Q: Smaller than an erect penis, a different shape to an erect penis but around the right size give or take an inch or two. If he had that in his trouser pocket or in his jacket pocket, do you think it possible that you might have made a mistake as to what you felt?
A: I can only say at the time
Q: You felt you knew?
A: I felt I knew that it was an erect penis, having experienced that before. That is all I can say.
Q: Is it at least conceivable that you might have made a mistake?
A: I did not think so at the time.
Q: But it is conceivable now that you might have made a mistake?
A: I am just thinking, if it was in his pocket, it (After a pause) If it was in his pocket, I would not have felt it against my body in the same way.
Q: I do not suggest anything more because I cannot say that he even had it in his pocket, he is not certain, than it might have been possible that, in his pocket, you felt that against your hip, you being nine inches shorter than him and him possibly having that in his pocket. It is at least a possibility, is it not?
A: It is at least a possibility, if you put it that way.
Q: Do you think that you might have been mistaken about what it was that you felt? A: No.
Q: Is it possible that what you felt was not a penis but something in Dr Chyc's pocket? A: No.
Q How would you be able to tell? A: I have to give the answer that I gave you last time, a woman knows"
Furthermore, in re-examination, she insisted that she "would still say I felt an erection rather than that" (indicating the key fob).
Failure to refer
Failures to file