QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| Dr. Mohamed Jamaideen-Mohamed Mubarak
|- and -
|General Medical Council
Javan Herberg (instructed by General Medical Council Legal) for the General Medical Council.
Hearing dates: 10th and 13th October 2008
Crown Copyright ©
The Hon Mr. Justice Burnett :
Legal principles applicable in an appeal under section 40
"The decisions in Ghosh and Preiss are a reminder of the scope of the jurisdiction of this Board in appeals from professional conduct or practices committees. They do indeed emphasise that the Board's role is truly appellate, but they also draw attention to the obvious fact 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 of 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 Thomas v Thomas  AC 484, 487–488."
"I. Where a question of fact has been tried with 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 well established, for very good reasons, that the Board will not interfere with the exercise of the discretion of a Professional Conduct Committee in matters relating to penalty. The assessment of the seriousness of the misconduct upon proof of a conviction is essentially a matter for the Committee, in the light of their experience of the range of cases which come before them. They are best qualified to judge what measures are required to maintain the standards and reputation of the profession and to assess the seriousness of any misconduct. As a general rule therefore the Board will be very slow to interfere with the decision of the Committee on matters relating to penalty."
16. In these circumstances it seems to me to be clear that we should follow the guidance given in the cases decided before the change in the appeal system effected on 1 April 2003. First, the Privy Council is of course a source of high authority; but secondly, we are in any event considering an effectively identical statutory regime. As it seems to me there are in particular two strands in the relevant learning before 1 April 2003. One differentiates the function of the Panel or committee in imposing sanctions from that of a court imposing retributive punishment. The other emphasises the special expertise of the Panel or committee to make the required judgment.
17. The first of these strands may be gleaned from the Privy Council decision in Gupta v the GMC  1 WLR 1691, 1702 at paragraph 21 in the judgment of their Lordships delivered by Lord Rodger of Earlsferry:
"It has frequently been observed that, where professional discipline is at stake, the relevant committee is not concerned exclusively, or even primarily, with the punishment of the practitioner concerned. Their Lordships refer, for instance, to the judgment of Sir Thomas Bingham MR in Bolton v Law Society  I WLR 512, 517-519 where his Lordship set out the general approach that has to be adopted. In particular he pointed out that, since the professional body is not primarily concerned with matters of punishment, considerations which would normally weigh in mitigation of punishment have less effect on the exercise of this kind of jurisdiction. And he observed that it can never be an objection to an order for suspension that the practitioner may be unable to re establish his practice when the period has passed. That consequence may be deeply unfortunate for the individual concerned but it does not make the order for suspension wrong if it is otherwise right. Sir Thomas Bingham MR concluded, at p 519: 'The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is a part of the price.' Mutatis mutandis the same approach falls to be applied in considering the sanction of erasure imposed by the committee in this case.
18. The Panel then is centrally concerned with the reputation or standing of the profession rather than the punishment of the doctor. This as it seems to me engages the second strand to which I have referred. In Marinovitch v GMC, 24 June 2002, Lord Hope giving the judgment of the board said this (paragraph 28, second sentence):
"28. In the appellant's case the effect of the committee's order is that his erasure is for life but it has been said many times that the Professional Conduct Committee is the body which is best equipped to determine questions as to the sanction that should be imposed in the public interest for serious professional misconduct. This is because the assessment of the seriousness of the misconduct is essentially a matter for the committee in the light of its experience. It is the body which is best qualified to judge what measures are required to maintain the standards and reputation of the profession."29. That is not to say that their lordships may not intervene if there are good grounds for doing so. But in this case their lordships are satisfied that there are no such grounds. This is a case of such a grave nature that the finding that the appellant was unfit to practice was inevitable. The committee was entitled to give greater weight to the public interest and to the need to maintain public confidence in the profession than to the consequences to the appellant of the imposition of the penalty. Their lordships are quite unable to say that the sanction of erasure which the committee decided to impose in this case while undoubtedly severe was wrong or unjustified."
19. There is, I should note, no tension between this approach and the human rights jurisprudence. That is because of what was said by Lord Hoffman giving the judgment of the board in Bijl  UKPC 42 para 2 to 3, which with great respect I need not set out. 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. That I think is reflected in the last citation I need give. It consists in Lord Millett's observations at paragraph 34 of Ghosh v GMC  1 WLR 1915, page 1923G:
"The board will afford an appropriate measure of respect to the judgment in the committee whether the practitioner's failing amount to serious professional misconduct and on the measures necessary to maintain professional standards and provide adequate protection to the public. But the board will not defer to the committee's judgment more than is warranted by the circumstances."
20. These strands in the learning then, as it seems to me, constitute the essential approach to be applied by the High Court on a section 40 appeal. The approach they commend does not emasculate the High Court's role in section 40 appeals: the High Court will correct material errors of fact and of course of law and it will exercise a judgment, though distinctly and firmly a secondary judgment, as to the application of the principles to the facts of the case."
"Their Lordships would add this. They have rejected the submission that there is a general duty to give reasons in cases where the essential issue is one of credibility or reliability of the evidence in the case. None the less, while bearing in mind the potential pitfalls highlighted by Lord Mustill, the committee can always give reasons, if it considers it appropriate to do so in a particular case. Their Lordships would go further: there may indeed be cases where the principle of fairness may require the committee to give reasons for their decision even on matters of fact."
I observe that the central issue in the case before the Panel which has given rise to this appeal was whether its members were sure that the complainant was telling the truth when she described the inappropriate sexual conduct of the appellant. So it is one of those cases in which a statement of conclusion on that issue would satisfy the approach identified by the Board. Miss Foster submitted, however, that the law has moved on and that the obligations imposed on judges to give reasons, exemplified by the decision of the Court of Appeal in English v Emery Reimbold & Strick Ltd  1 WLR 2409, is now applicable to disciplinary committees and thus what the Board in Gupta considered to be an exceptional course should now be regarded as the norm.
"Where there is a straightforward factual dispute the resolution of which depends simply on which witness is telling the truth about events which he claims to recall it is likely to be enough for the judge (having, no doubt, summarised the evidence) to indicate simply that he believes X rather than Y; indeed there may be nothing else to say."
"85.Whilst I fully accept that the instant case is not a proper forum for the promulgation of guidelines, my provisional view is that paragraph 14 of the decision of the Privy Council in Gupta v GMC identifies an approach which reflects current norms of judicial behaviour. In every case, as it seems to me, every Tribunal (including the PCC of the GMC) needs to ask itself the elementary questions: is what we have decided clear? Have we explained our decision and how we have reached it in such a way that the parties before us can understand clearly why they have won or why they have lost?
86. If, in asking itself those questions the PCC comes to the conclusion that in answering them it needs to explain the reasons for a particular finding or findings of fact that, in my judgment, is what it should do. Very grave outcomes are at stake. Respondents to proceedings before the PCC of the GMC are liable to be found guilty of serious professional misconduct and struck off the Register. They are entitled to know in clear terms why such findings have been made."
Arden LJ was reluctant to seek to define the duty to give reasons in a case where the need to do so did not arise and where there had not been full argument. Sir Mark Potter P endorsed the approach of Wall LJ. He said this:
"106.I agree with the judgment of Lord Justice Wall and, for my part, I would endorse his observations at paragraphs 65 to 87 concerning to the inter-relation of paragraph 14 of the decision of the Privy Council in Gupta and the principles set out in English v Emery Reimbold. The latter case made clear that the so-called "duty to give reasons", is essentially a duty which rests upon judicial and quasi-judicial tribunals to state their decisions in a form which is sufficient to make clear to the losing party why it is that he has lost. This requirement will be satisfied if, having regard to the issues as stated and decided and to the nature and content of the evidence in support, the reasons for the decision are plain, whether because they are set out in terms, or because they are implicit i.e. readily to be inferred from the overall form and content of the decision. I do not think that there is any real difference or substantial inconsistency, other than one of emphasis, between that principle and what was stated in Gupta, namely that there is no general duty on the PCC of the GMC to give reasons for its decisions on matters of fact, in particular where the essential issue is one of credibility or reliability of the evidence in the case, whilst at the same time recognising that there are cases where the principle of fairness requires reasons to be given "even on matters of fact": see paragraph 14 of Gupta. It seems to me that such cases are those where, without such reasons, it will not be clear to the losing party why he has lost. It is not a necessary ingredient of the requisite clarity that the reasons should be expressly stated when they are otherwise plain or obvious."
"The Panel has considered all the oral and documentary evidence in this case. It has also considered the submissions of both Counsel. The Panel recognises that the burden of proof is on the General Medical Council and it has applied the criminal standard of proof. It has considered each head of allegation separately.
The Panel has also considered your own testimony and in deciding what weight to attach to it has had regard to the evidence of your good character.
The Panel has concluded that Ms A was a credible witness and that her evidence of the numerous and detailed allegations against you were truthful. The Panel had particular regard to the fact that she reported the allegations to her friend immediately after the events and over the next 2-3 days in statements made to the Police. Furthermore, the initial complaints and statements were substantially consistent with her subsequent statement to the GMC and her oral evidence before this Panel. Such inconsistencies in her evidence as to certain details were not so significant as to undermine her evidence as a whole, particularly bearing in mind that the events complained of occurred almost 2 ½ years ago."
"At the material time you were a General Practitioner and partner at the Dragon Cottage Surgery, Holmer Green, High Wycombe, Buckinghamshire HP15 6RZ (The Surgery). Patient A was a registered patient at that Surgery. On 7 July 2005 you saw Patient A, who attended the surgery to consult you about dizziness and an ear infection. At that consultation, Patient A told you that following the removal of her contraceptive coil she had been experiencing heavy bleeding. You provided her with forms to undergo blood tests at Amersham General Hospital. You asked her if you could undertake an internal examination but she declined the offer as she had her period at the time. The Panel has found that your request to undertake an internal examination on that occasion was inappropriate and not clinically justified.
On 8 July 2005, Patient A consulted you again in order to get the results of the blood test. You discussed her ear infection and dizziness and the results of her blood test. You asked her about her periods, if she was sexually active and if she had a partner.
The Panel has heard that at that consultation you also commented on Patient A's attractiveness. This comment was inappropriate, improper, and liable to bring the profession into disrepute.
You also asked her if you could carry out an internal examination. The Panel has found this request was not clinically justified. Patient A reluctantly agreed to an internal examination. You did not explain why it was necessary to conduct an internal examination nor what the clinical benefit would be. You neither offered her the presence of a chaperone, friend or relative, nor did you afford her appropriate privacy during the examination which followed.
Your actions and omissions were inappropriate, improper and not in the best interests of the patient.
Once Patient A was undressed, you asked her about her naval piercing, began to fiddle with the piercing with your fingers and bent down and examined it through your cupped hands. The Panel has found this behaviour to have been inappropriate, an abuse of your position of trust, not in the best interests of the patient and indecent.
The Panel has found that you then purported to conduct an internal examination by inserting your fingers into Patient A's vagina and sliding your fingers in and out on a number of occasions. This was neither a proper internal examination, nor was it clinically justified. Further, it was inappropriate, indecent and not in the best interests of the patient. It was an abuse of your position of trust and liable to bring the profession into disrepute.
Following the internal examination, you asked Patient A about her breasts. She informed you that she had had breast surgery about four months previously. At your request, she exposed her breasts and then you cupped your hand around her right breast and tweaked her right nipple. Your actions were not clinically justified, not a proper breast examination, inappropriate, indecent, not in the best interests of the patient, an abuse of your position of trust and liable to bring the profession into disrepute.
Following the examination, you told Patient A that you would telephone her on the following Monday to make sure she was alright. You commented on a previous experience which you had had with an elderly patient asking for internal examinations. Your remarks were inappropriate. Further, you did not record in her medical notes that you had purported to conduct internal and breast examinations. Your failure to make a record of your examinations was inappropriate.
The GMC publication "Good Medical Practice" (2001) states clearly that "patients must be able to trust doctors with their lives and well-being. To justify that trust, we as a profession have a duty to maintain a good standard of practice and care and to show respect for human life. In particular as a doctor you must:
Treat every patient politely and considerately
Respect patients' dignity and privacy
Be honest and trustworthy
Avoid abusing your position as a doctor."
It further states that "Successful relationships between doctors and patients depend on trust". Additionally, "In providing care you must keep clear, accurate, legible and contemporaneous patient records which report the relevant clinical findings, the decisions made, the information given to patients and any drugs or other treatment prescribed". You failed to adhere to these requirements.
Your actions and conduct in relation to this patient, constitute fundamental breaches of the principles and standards expected of a registered doctor and represent a gross abuse of the doctor/patient relationship. Accordingly, the Panel has found that your fitness to practise is impaired because of your misconduct."
"The Panel has already announced its findings that your fitness to practise is impaired by reason of your misconduct. The Panel must now determine what sanction, if any, to impose on your registration. The Panel has had regard to all the evidence presented and the submissions of both Counsel. It has applied the principle of proportionality, weighing the public interest against your own interest.
The Panel has a duty to protect the public interest. The public interest includes the protection of patients, the maintenance of public confidence in the medical profession, and declaring and upholding proper standards of conduct and behaviour as set out in the GMC's document "Good Medical Practice". The Panel recognises that the purpose of sanctions is not to be punitive, although they may have a punitive effect. The Panel has considered all the relevant parts of the GMC's "Indicative Sanctions Guidance" (April 2005).
This case centres on your conduct towards Patient A on 7 and 8 July 2005. The Panel has made findings that your conduct towards her on the first of these dates in requesting to undertake an internal examination was inappropriate and not clinically justified. Neither was your request to carry out an internal examination on 8 July 2005 clinically justified. Of particular concern to the Panel is the fact, that in the course of that consultation, you pursued a course of behaviour towards your patient which comprised three quite separate and distinct acts of sexual misconduct.
The Panel has considered the submissions made by Mr Kark on behalf of the GMC suggesting erasure as the appropriate sanction. The Panel has also given careful consideration to the mitigation in this case put forward by Mr Hockton on your behalf. He submits that you have an unblemished career and are respected by your patients and colleagues. He submits that there is no risk of recurrence and that there is not a risk to the public. The Panel has also considered your evidence about your medical condition. There is no evidence of any other such misconduct. The Panel has also considered the testimonials submitted and other evidence of your good character.
The Panel first considered whether it would be sufficient to conclude your case without taking any further action, but determined in the light of the seriousness of its findings, that this would be wholly inappropriate.
The Panel went on to consider whether the imposition of conditions would be appropriate. It noted that Indicative Sanctions Guidance states that conditions may be appropriate where there is no evidence of harmful deep-seated personality or attitudinal problems and where it is possible to formulate appropriate and practical conditions to impose on registration. The Panel is sure this is not appropriate. It considers that you have demonstrated a complete lack of insight into your misconduct during the investigations and at this hearing. Furthermore, it considered that neither could it formulate conditions which would address the seriousness and extent of your misconduct nor would the imposition of conditions be sufficient to ensure patient safety and satisfy the public interest.
The Panel next considered whether a period of suspension would be both proportionate and sufficient to protect the public interest. Indicative Sanctions Guidance states that a period of suspension may be appropriate when the instance of misconduct is serious, where the actions are not fundamentally incompatible with continuing to be a registered doctor, where there is no evidence of harmful deep-seated personality or attitudinal problems, where there is no evidence of repetition of behaviour since the incident and where the Panel is satisfied that the doctor has insight and does not pose a significant risk of repeating the behaviour. The Panel considers that your actions displayed no concern for Patient A's privacy and dignity and that your actions towards her were reprehensible. The Panel rejects your contention that you have no independent recollection of the events in question. The consultation on 8 July 2005 was lengthy and unusual. Your conduct constituted a fundamental breach of the principles and standards expected of a registered doctor. You abused the special position of trust between a doctor and patient. The Panel is concerned about your lack of insight into the matters that have brought you before this Panel and the absence of remorse. Accordingly, the Panel has determined that suspension is insufficient. The Panel is satisfied that your behaviour is fundamentally incompatible with your continuing to be a registered medical practitioner. Your misconduct constituted serious departures from the relevant professional standards as set out in Good Medical Practice. You have abused your position of trust towards Patient A and violated her rights, you committed several acts of sexual misconduct on her and your have shown a persistent lack of insight into the seriousness of your actions and their consequences.
The Panel has had regard to paragraphs 39 to 42 of the GMC's Indicative Sanctions Guidance. Paragraph 39 states that:
"There are some examples of misconduct where the Privy Council has upheld decisions to erase a doctor despite strong mitigation. This has been because it would not have been in the public interest to do otherwise given the circumstances concerned. The three areas of concern are:
Failing to provide an acceptable level of treatment/care".
The relevant area of concern in your case is Sexual Misconduct.
Paragraph 40 states:
"Whether erasure is appropriate in cases of this kind will depend on the particular facts of each case and other relevant factors"
The Panel has also borne in mind the judgment of Gupta v the GMC (Privy Council Appeal No 44 of 2001) in which Lord Rodgers of Earlsferry quoted with approval the statement of Sir Thomas Bingham, the Master of the Rolls, in Bolton v The Law Society (1994) 1 WLR 512:
"The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is part of the price."
Although the Panel has considered your case on its own facts it has also had regard to the High Court decision in the case of Dr Wentzell v GMC (2004), an appeal against erasure by a doctor who had formed and pursued a sexual relationship with a vulnerable patient. In his judgment, Mr Justice Lightman said, "The real thrust of the appeal on sanction lay in the draconian consequences of erasure on Dr Wentzell and the public …. erasure will effectively end Dr Wentzell's career. It is submitted that three interests fall to be weighed in deciding what sanction to impose: (a) public confidence in the medical profession; (b) commitments; and (c) the interests of the doctor in not having his career cut short …. Of the three interests to be weighed the maintenance of the public confidence in the medical profession is the paramount interest. In view of the extreme character of his misconduct ………..the GMC was fully entitled (if not bound) notwithstanding the consequences for Dr Wentzell and the health service, to order erasure and there is no basis on which the court can or should interfere with the determination of that expert and informed body".
The Panel recognises that there are distinctions in the facts in that case and the present case. However, the Panel is satisfied that your sexual misconduct was very serious and has therefore applied to this case the principles quoted above from the judgement of Mr Justice Lightman.
Accordingly, the Panel has determined to erase your name from the Medical Register."
The Panel's conclusion that the complainant was telling the truth
(a) The contradictions about the length of time that the consultation on 8 July lasted;
(b) Her confusion about whether the appellant touched her right or left thigh;
(c) The differences between her statements which variously suggested that she had exposed one and both of her breasts;
(d) Inconsistencies between various accounts of how long the inappropriate touching lasted.
Miss Foster additionally submitted that at various points during cross-examination the complainant was evasive and aggressive, that she reacted poorly to the pressure of having her account probed and was demonstrably inadequate.
The consultation notes
G.P. Surgery Onset
Dr M J M Mubarak
E: [D] Dizziness
S: not real vertigo rather lightheaded feeling; tired all the time; menorrhagia for the last few months
O: nil of note; no postural bp drops
P: check bloods inc.FBC; review
D BP 100 mm Hg / 70 mm Hg
Dr M J M Mubarak
E: [D] Dizziness
S: rather worse with nausea; nil else
Rx: Cinnarizine Tablets 15mg
P: blood tests were ok (Hb%=14.3) Probably mild labyrinthitis
Dr M J M Mubarak
E: [X]0th spcf irreg menstruation
S: mirena coil removed 2 m ago
O: nil of note
P: reassured; review of persists
"Q This is for 8 July – there are two entries there.
A There are two entries because probably this was a computer error, but it was all the same consultation. So dizziness, I explained to the patient, is very unlikely anything related to her period. And then about the menstruation – I thought she had mirena. She said mirena coil, but that was not correct, actually. It was a copper coil. Then I have recorded "nil of note" from the observation. The patient walked into the room well and she was talking well, and she was not pale. There was nothing to suggest anything for her complaint, that it was worse, so I recorded "nil of note".
Q. What is that underneath – "P"?
A. That is the comment. So I reassured. "Review", that says.
Q. What does the note refer to?
A. I reassured her. I told the patient it is very unlikely anything significant, it is probably related to her coil, so if it persists – say, for instance, after six months or so – to review the situation."
"Q. What is the difference between the 7th and the 8th? Your note is identical on them.
A. Sorry? Yes, I put "nil of note" because on the whole the patient's condition would have been very well, so I put that nothing significant was observed or found.
Q. Let me be quite fair to you. You have told us that you have got no independent recollection, you are basing your evidence on your clinical notes and your usual practice.
Q. What I am seeking to ascertain from you is why, on the basis of your clinical notes, are you telling us that "nil of note" recorded on 7 July involved an abdominal examination and the same note on 8 July in your view did not involve any physical examination at all, even to the extent of even touching the patient?
A. No, nothing.
Q. How are you sure of that?
A. That is what I would have done. From the patient's condition and the symptoms there was no necessity for an examination, so I would have based it on that.
Q. Just before we leave that point, did I understand you correctly, you said that your note on 8 July "O: nil of note" was based on the note you made on 7 July?
A. Correct, yes.
Q. Is that usual practice, to record ---
Q. Just a minute, let me finish the question. Is it your usual practice that when you see a patient a day later you make the same finding relating to a consultation a day earlier?
A. Depending on the patient's condition, yes. You do not need to examine the whole system again on the following day.
Q. Would you agree with me that if the 7 July note "O: nil of note" on the basis of your usual practice suggests that you carried out a physical examination, by making the same record a day later the suggestion to someone seeing those notes would be that again a physical examination of some sort was carried out on that second occasion?
A. I meant mainly based it on the observation and the previous day's examination.
Q. Maybe, but would you agree with me that the impression given by the identical note a day later would suggest that if on the previous day a physical examination was carried out, the same interpretation would be put on the note the following day?
A. Maybe, yes.
Q. Can I just ask you one final question – well, two matters still I want to ask you about. Again, in cross-examination you said that there was no argument when she left, you did not notice any difference when she left, nothing seemed to be wrong
Q. On what are you basing that evidence?
A. From my notes, yes, just from my notes really. If there was anything, I might have mentioned –--
Q. How do the notes enable you to say that there was no argument when she left and that you did not notice any difference when she left?
A. If I have noticed anything, on the comment we usually write down if the patient was unhappy or said anything. You know the comment, it is "P", on the comment if we notice any unhappiness or if the patient has said anything, that is where usually we note it, but because I have not noted anything, so obviously there was not any.
Q. Just one final question: you agree, I think with Mr Kark, that 29 minutes would be a very long consultation and you said that you found it difficult to see how so much time was taken up. Can you help me as a lay member, looking at your clinical notes of 8 July, with no independent recollection, how long would you estimate that sort of consultation would take, based on the clinical notes?
A. If I had not phoned for the hospital, probably two or three minutes.
Q. So it is two or three minutes---
A. If I had not phoned the hospital
Q. I understand, plus whatever time---
A. The hospital took.
"Yes it is what you might call two headings, two problems".
The exchange continued as follows:
"Q. One is the review of the 7th, the problem the patient presented with, the dizziness.
A. I do not know how review and onset get onto the computer. I have no knowledge of that. I do not know what the difference is between them.
Q. I do not know if you have had time to look at the rest of the patient's records, there is review and onset over the years in a certain pattern and if the reviews are referring to the dizziness which is similar, and then the patient got a prescription on the 8th for a problem she presented with on the 7th, would that make sense?
A. Yes, I can see how that can be termed a review. The other one actually is also a review, is it not, a review of something that was first presented on the 7th, but that is called an onset. I have no knowledge of how these headings get in there.
Q. My question was – but maybe you cannot help us but I will ask it anyway if I may, Chairman – the "nil of note" seems to refer to the menstrual problems and not to the dizziness.
A. I agree with that. It is under that heading."
"Can we then go to the doctor's own note of the examination, exhibit page 10. As often happens in these cases, it is sometimes that the Panel questions, frankly, that give rise to the most interesting questions. Can I confess that I think it has happened in this case because if you look at the note of 8 July 2005, it is actually quite clearly split into two separate parts. This is not a function simply of the computer; that is a deliberate function of the person making the note.
The first part of the note seems to be dealing with the dizziness and the prescription for that and what happened as a result, and blood tests. Then, quite separately, in fact, there is the record of complaint of other specific irregular menstruation, the history being inaccurately that a merina coil had been removed and then the examination being "nil of note".
Well, if that examination, as it appears to, related to that particular complaint, you will have to ask yourselves, "Well, what on earth is the nature of that examination?" Certainly, a doctor who comes after Dr Mubarak would look at that and certainly they would be none the wiser as to what sort of examination had taken place, but they would certainly think that an examination had taken place." (emphasis added).
That part of the submission I have underlined was not supported by the evidence, and neither could it be regarded as a proper inference from the evidence that was called. The appellant had suggested that the bifurcated nature of the entry was a function of the way the computer operated. It was, from his point of view, a single entry. Mr Howard was not asked about this aspect of how the computer worked although he has since confirmed that the splitting of entries is something the computer can do automatically. Dr Rowlands disavowed any expert knowledge of how the system operated.