England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		2nd February 2009

1. MR JUSTICE LLOYD JONES: This is an appeal by Dr Bhupinder Sacha pursuant to section 40 of the Medical Act 1983 against the determination of the Fitness to Practise Panel of the General Medical Council, made on 24th October 2007, that his fitness to practise was impaired by reason of misconduct and that his name should be erased from the medical register.
2. The background to this matter is that Dr Sacha was a practitioner in a practice in Hinckley. He practised there for many years. The proceedings concerned two patients of that practice. Patient A and her family had first registered with Dr Sacha in the early 1990s. Throughout 1999, 2000 and 2001 Patient A consulted Dr Sacha in relation to depression. He was supportive. In 2001 she was appointed a receptionist at the practice. Her mental health remained unstable. The events which gave rise to her allegation against Dr Sacha occurred one evening in 2001. On that occasion Patient A alleged that Dr Sacha approached her in the surgery staff room, put his hands on her arms, pulled her body towards him, attempted to kiss her and told her that he found her very attractive and very beautiful, or words to that effect. Patient A resigned from her job but continued to be a patient of the practice. She had resolved not to take any formal steps in relation to what had happened. However, in 2005, following publicity about an allegation being made by Patient C, Patient A contacted the police.
3. The other patient was Patient C. At the time of the incident giving rise to her allegations against Dr Sacha, she was 17 years of age and had been registered with Dr Sacha since she was a young child. In the twelve months leading up to the events which formed the subject of the allegations, she had visited the practice frequently. On 28th February 2005, she attended a drop-in clinic at which she saw Dr Sacha and consulted him about tummy problems and a fast heart rate. In the course of the consultation, Dr Sacha conducted a breast examination and a vaginal examination, which led to her allegations against him. That evening Patient C spoke to her sister and, subsequently, her parents and the police, about what had happened. Dr Sacha was charged with an offence under section 2(1) of the Sexual Offences Act 2003 in relation to the vaginal examination of Patient C. He was tried by a judge and jury at Leicester Crown Court and was acquitted.
4. The charges before the Fitness to Practise Panel of the General Medical Council were as follows. I set them out in their form following an amendment made during the disciplinary hearing:

"That being registered under the Medical Act 1983

1. At all material times you were a UK registered practitioner working as a general practitioner at the Hollycroft Medical Centre, Clifton Way, Hinckley;

2. In or about 1992 Patient A registered as a patient at the Hollycroft Medical Centre;

3. Throughout 1999 and 2000 you treated Patient A for a depressive illness;

4. On an unspecified date towards the end of 2000 a vacancy arose for a receptionist at Hollycroft Medical Centre;

5. Patient A commenced employment as a receptionist in around early 2001;

6. A. On an unspecified Wednesday evening...

[in] 2001...

b. In the surgery staff room you

i. Approached Patient A, put your hands on her arms and pulled her body towards you,

ii. Attempted to kiss Patient A,

iii. Told Patient A that you found her 'very attractive' and 'very beautiful' or words to that effect;

7. In 2005 Patient C was a patient registered at the Hollycroft Medical Centre;

8. On 7th February 2005, Patient C consulted you complaining of hyperacidity and you prescribed medication for her condition;

9. On 14th February 2005, Patient C consulted you complaining of headaches and palpitations. She was prescribed medication and told to return in one week;

10. On 28th February 2005, Patient C returned for her follow-up appointment, in the course of this appointment you

a. Examined Patient C's breasts

i. You did not explain the purpose of the examination to Patient C,

ii. You did not offer Patient C a chaperon for the examination,

iii. You carried out the examination when it was not clinically indicated,

iv. You carried out the examination in an inappropriate manner,

v. You did not record the examination in Patient C's medical records,

b. Conducted an internal vaginal examination

i. You did not explain the purpose of the examination to Patient C,

ii. You did not obtain her express consent,

iii. You did not offer Patient C a chaperon for the examination,

iv. You did not record the examination in Patient C's medical records;

11. Your actions as set out in paragraphs 6(b)(i)-(iii) and 10(a)(i)-(v) and 10(b)(i)-(iv) were

a. Inappropriate,

b. Unprofessional,

c. An abuse of professional position,

d. And, in respect of 6(b)(i)-(iii) and 10(a)(iii)-(iv), sexually motivated."

5. The charges set out in subparagraphs 6(a) and 6(b) in relation to Patient A were found proved by the Fitness to Practise Panel. The Panel also concluded that this conduct was inappropriate, unprofessional, an abuse of professional position and sexually motivated. The charges in paragraph 10(a)(i)-(v) in relation to the alleged examination of Patient C's breasts were found proved. The Panel also found that the conduct in 10(a)(i) was inappropriate and unprofessional, but was not an abuse of professional position. It concluded that the conduct in 10(a)(ii) was inappropriate, but it found the case not proved in relation to whether it was unprofessional and an abuse of professional position. It considered that the conduct in 10(a)(iii) was inappropriate, unprofessional, an abuse of professional position and sexually motivated. It considered that the conduct in 10(a)(iv) was inappropriate, unprofessional, an abuse of professional position and sexually motivated. It considered that the conduct in 10(a)(v) was inappropriate and unprofessional, but it found this conduct not to be an abuse of professional position. It considered the conduct in 10(b)(i) to be inappropriate and unprofessional, but found that it was not an abuse of professional position. It considered that the conduct in 10(b)(ii) was inappropriate and unprofessional, but found that it was not an abuse of professional position. It found that the conduct in 10(b)(iii) was unprofessional, but it found that it was not an abuse of professional position. In addition, Dr Sacha had admitted that that conduct in 10(b)(iii) was inappropriate. Dr Sacha had admitted that the conduct in 10(b)(iv), which was admitted, was inappropriate and unprofessional. The Panel found it was not proved to be an abuse of professional position. I should also make clear that the allegations in 10(b)(iii) and (iv) were admitted by Dr Sacha. It should be noted that there was no allegation that the internal investigation was sexually motivated. The Panel went on to conclude that Dr Sacha's fitness to practise was impaired by reason of misconduct and that his name should be erased from the medical register.
6. On this appeal, Mr Hockton, who appears on behalf of Dr Sacha, advances various grounds of appeal which fall into three categories: first, challenges to the Panel's determination, at the outset of proceedings, refusing to stay the charges on grounds of double jeopardy or abuse of process; secondly, challenges to the Panel's rejection of the submission at the conclusion of the General Medical Council's case that there was no case for Dr Sacha to answer; and, thirdly, challenges which can be broadly described as challenges to the Panel's findings of fact.
7. Before turning to the grounds of appeal, I should say something about the powers of this court on this appeal. The appeal is brought under section 40 of the Medical Act 1983. This appeal is required by Part 52PD.22.3 to be by way of re-hearing. This court will allow an appeal where the decision of the lower tribunal was wrong or unjust because of a serious procedural or other irregularity in the proceedings before the lower tribunal (CPR Part 52.11).
8. In considering these matters, I bear in mind, and I give appropriate weight to, the fact that the Panel is a specialist tribunal whose understanding of what the medical profession expects of its members in matters of medical practice deserves respect, and that it has had the advantage in this case of hearing the evidence from live witnesses. (See the observations of Auld LJ in Meadow v General Medical Council [2007] QB 462, [2006] EWCA 1390 at paragraphs 125 and 197). I also have in mind the observation of Laws LJ in Fatnani and Raschid v General Medical Council [2007] 1 WLR 1460, [2007] EWCA Civ 46 at paragraph 20, that on an appeal under section 40:

"... the High Court will correct material errors of fact and of course of law and it will exercise a judgement, though distinctly and firmly a secondary judgement, as to the application of the principles to the facts of the case."

9. Given the nature of some of the criticisms made by Mr Hockton of the proceedings before the Fitness to Practise Panel, it is appropriate that I refer at this stage to the authorities concerning the role of the legal assessor in such proceedings. In Gopakumar v General Medical Council [2008] EWCA Civ 309, Tuckey LJ, with whose judgment Jacob LJ and the Master of the Rolls concurred, expressed the matter as follows:

"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."

In addition he referred to the advice of the Privy Council in Libman v General Medical Council [1972] AC 217, where Lord Hailsham said that where criticism is made of a 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 General Medical Council [2005] EWCA Civ 250, and again in Gopakumar, the Court of Appeal has made clear that Lord Hailsham's proposition still governs the approach that any court should adopt to decisions of the Professional Conduct Committee of the GMC.

Double jeopardy and abuse of process

The trial in the Crown Court

10. The various grounds which fall under this head are intimately connected with the trial of Dr Sacha at Leicester Crown Court in December 2005, proceedings which resulted in his acquittal.
11. There was only one count on the indictment faced by Dr Sacha; it alleged an offence contrary to section 2(1) of the Sexual Offences Act. The particulars of the offence were:

"... that on 28th February 2005 he intentionally penetrated, sexually, the vagina of [Patient C] with a part of his body, namely his finger, the circumstances being that the penetration was sexual, [Patient C] did not consent to the penetration and Bhupinder Singh Sacha did not reasonably believe that she consented."

It should be noted that there was no count on the indictment which related to the alleged touching of Patient C's breasts. At the start of the trial, the trial judge, Elias J, refused an application by the Crown, pursuant to the bad character provisions of the Criminal Justice Act 2003, for permission to adduce evidence of the conduct alleged by Patient A. He considered that it was too dissimilar to the conduct alleged in the indictment. A later attempt by the Crown to revive the application was similarly refused by the judge. Although there was no count on the indictment relating to the alleged touching of Patient C's breasts, her evidence that this had occurred was admissible at Dr Sacha's trial because the conduct was alleged to have formed part of the course of events giving rise to the offence alleged in the indictment. The judge directed the jury that they could take account of this evidence, if they were sure that the allegation was true, in deciding what was the purpose of the internal investigation. At the conclusion of the summing-up the jury retired and, 35 minutes later, they returned a verdict of not guilty.

The abuse of process application before the Fitness to Practise Panel

12. On the first day of the hearing before the Fitness to Practise Panel, Mr Forde QC, who appeared for Dr Sacha, submitted that the proceedings should be stayed. His application was made pursuant to Rule 17(2)(a). He said that he relied on three interlinked concepts. The first was double jeopardy and autrefois acquit, the second was Article 6 of the European Convention on Human Rights and the third was the general concept of abuse of process. He described these as "subtly different expressions of the fundamental proposition that the courts have recognise[d] that no citizen should be subjected to an unfair process". His submission was that the question for decision was whether the doctor should undergo the considerable ordeal of revisiting matters which had already been adjudicated upon at the criminal trial. He conceded that for the purposes autrefois acquit the Panel was not a court of competent jurisdiction. He submitted that there was a lack of fairness in re-litigating matters which were the subject of criminal proceedings, but accepted that the Panel could quite fairly deal with matters such as the failure to offer a chaperon, which were matters material to professional standards. On this basis, his objection related to the allegations in paragraphs 10(a)(i), 10(a)(iii), 10(a)(iv), 10(b)(i) and 10(b)(ii). So far as Article 6 is concerned, it is fair to say that Mr Forde did not develop this point beyond the applicability of Article 6 to these proceedings. Before me, Mr Hockton accepted that it did not add a great deal to the general argument on unfairness.
13. In her submissions on behalf of the General Medical Council, resisting the application, Miss Baxter provided an important explanation as to why there was no charge alleging indecent assault in relation to the internal examination. The charges in relation to the internal examination were limited to the failure to explain the purpose, failure to obtain express consent, failure to offer a chaperon and failure to record the examination. This was alleged to be inappropriate, unprofessional and an abuse of professional position, but it was not alleged to be sexually motivated. At Day 1, page 35, Miss Baxter explained to the Panel that both experts in the Crown Court had indicated that if it was the case that she had complained of lower abdominal pain, then it would indicate, or could indicate, the necessity for an internal vaginal examination. Miss Baxter told the Panel that the witness conceded that she had indicated pain. She also drew attention to the judge's summing-up, where the judge told the jury that if the medical notes accurately recorded what the doctor was told, or, indeed, if they reflected what he genuinely, perhaps mistakenly, understood he was being told, then there would have been every justification for this internal examination. She said this:

"That was the state of the evidence from the prosecution and from the defence. In those circumstances, in my submission, it would not be proper to say that this examination was any longer not clinically indicated when the evidence, as given by both the prosecution and the defence, was as set out in the summing-up."

14. At the conclusion of the submissions on this application, the Legal Assessor made a statement. The Panel then retired and considered its ruling. In its ruling it referred to Ziderman v General Dental Council [1976] 2 All ER 334, where Lord Diplock had stated:

"The purpose of disciplinary proceedings against a person convicted of a crime is not to punish him a second time for the same offence but to protect the public who come to him as patients and to maintain the high standards and good reputation of an honourable profession".

The Panel also referred to the judgment of Newman J in R (Phillips) v General Medical Council [2004] EWHC 1858 (Admin). Then it continued:

"The Panel is of the view that it is a professional Panel, with each member having their own expertise to evaluate evidence as a panel of inquiry and not a criminal trial. The role of the Panel is different to criminal proceedings as it is investigating a breach of professional standards. It considered that if all the paragraphs were taken at their highest, they would not constitute a finding of guilt to the criminal charge of which Dr Sacha was acquitted. Further, the Panel considered that the finding of not guilty in the Crown Court does not mean that each of the facts in the allegation before the Panel was adjudicated on.

Taking all these matters into account, the Panel does not find that the principle of double jeopardy is offended in this case."

15. In his submissions before me Mr Hockton accepted that the principle of double jeopardy or autrefois acquit could have no application here. However, he submitted that these proceedings before the Panel were unfair because the matter had already been ruled upon. Moreover, he advanced a wider argument on the unfairness of allowing these proceedings to go ahead before the Fitness to Practise Panel.
16. So far as double jeopardy is concerned, Mr Hockton's concession is clearly correct. In R (Redgrave) v Commissioner of Police for the Metropolis [2003] 1 WLR 1136, Simon Brown LJ (as he then was) said this:

"38. There are two main reasons why the double jeopardy rule should not apply to tribunals, even where they apply the criminal standard of proof. In the first place it must be recognised that the character and purpose of the proceedings is entirely different - the central point made by Lord Diplock in Ziderman... Secondly, however, and no less importantly, the material before the tribunal is likely to be different: in part because different rules of evidence are likely to apply and in part because judicial discretions may well be differently exercised - generally less strictly in the disciplinary context where at least the accused's liberty is not at stake. It may also be that on occasions, as Mr Freeland suggests, witnesses will be readier to give evidence at disciplinary hearings held in private than in the full glare of open court proceedings.

39. Even, moreover, were the existing case law unclear on the issue, I for my part would be reluctant to introduce into tribunal proceedings the inflexibility inherent in the double jeopardy rule, least of all at a point in time when Parliament has indicated its intention of abolishing the rule, certainly in respect of some crimes, even with regard to its application in courts of competent jurisdiction."

(See also the observations of Newman J in R (Phillips) v General Medical Council at paragraph 37). The Fitness to Practise Panel is not a court of competent jurisdiction. There is no principle of autrefois acquit which prevents a disciplinary tribunal, such as the Fitness to Practise Panel of the General Medical Council, from investigating conduct which has been the subject matter of a trial and which has resulted in the acquittal of the defendant.

17. I turn, therefore, to consider whether, in the particular circumstances of this case, proceeding with the charges objected to by Mr Forde was an abuse of process. The argument before me has focused on the guidance provided by Simon Brown LJ in Redgrave as to when disciplinary proceedings, following an acquittal, may amount to an abuse of process. The Lord Justice ended his judgment by commending to disciplinary boards generally two particular paragraphs inserted in the 1999 Home Office Guidance on Police Unsatisfactory Performance, Complaints and Misconduct Procedures. The second of those paragraphs reads as follows:

"Where criminal proceedings have taken place for an offence arising out of the matter under investigation and those proceedings have resulted in the acquittal of an officer, that determination will be relevant to a decision on whether to discipline an officer:

(a) where the conduct under investigation is in substance the same as the criminal charge so determined, and where the alleged failure is so serious and the likely sanction serious such that it would be reasonable to look for proof to a high degree of probability... it will normally be unfair to institute disciplinary proceedings; or

(b) where the conduct under investigation is not in substance the same as the criminal charge so determined, it may nevertheless be unfair to proceed where a matter essential to the proof of the misconduct was in issue in criminal proceedings and had been resolved in the officer's favour."

It seems to me that this passage provides most welcome guidance as to what may be considered an abuse of process in the circumstances of the present case.

18. It is convenient to record at this point that the standard of proof in disciplinary proceedings before the Panel is the criminal standard, that is proof beyond reasonable doubt so that the fact-finding body is sure.
19. Mr Hockton's first submission in this regard criticises the advice of the legal assessor to the Panel on this issue. It is therefore necessary to consider whether these criticisms have any substance and, if so, whether they can fairly be thought to have been of sufficient significance as to invalidate the decision:
20. First, Mr Hockton complains that the assessor failed to draw to the Panel's attention the significance of the passage in paragraph 46 of Redgrave. That is the passage which I have just read in which Simon Brown LJ refers to the Home Office guidance. It is fair to point out that Mr Forde had not relied on this passage in his submissions. However, the Panel were made aware of it by Miss Baxter, who read it out to them (Transcript Day 1, pages 28-29) and then made her submissions that the principle did not apply because the issues arising in this case were entirely different. So the Panel were clearly aware of this passage in Redgave.
21. Secondly, Mr Hockton complains that the assessor failed sufficiently to assist the Panel in distinguishing between abuse of process and double jeopardy. I note in passing that Mr Forde had presented these as interlinked concepts. However, having heard the detailed submissions of counsel, the Panel can have been in no doubt as to the principles they had to apply.
22. Thirdly, Mr Hockton complains that the Legal Assessor may well have given the Panel the impression that unless the disciplinary proceedings and the criminal proceedings were the same in nature, and the facts alleged were identical to those involved in the criminal case, it would be unfair to proceed. In this regard he relies on the following passage:

"Just dealing simply, these are different proceedings. It is a question for you to decide how much the facts of the previous acquittal help you by saying they are identical to the allegations that are raised on this matter, bearing in mind that you cannot go into the jury box when they retired and say exactly what it was that they decided on, or acquitted on."

23. I am unable to accept that the assessor could have left the impression that unless the disciplinary proceedings and the criminal proceedings were the same in nature, which they obviously were not, and the facts alleged were identical, which they obviously were not, it would not be unfair to proceed. Had the Panel thought that that was the test, they would have wondered what there was for them to consider. They certainly would not have announced the reasons for their decision in the terms they did.
24. Fourthly, Mr Hockton complains that the assessor did not sufficiently advise the Panel that the substance of the allegation in both of the proceedings was the same. However, it seems to me that this was a matter for the decision of the Panel. They had been addressed at length by counsel as to how the legal principles applied in this case, and in their decision they expressed their conclusion as to the degree of similarity.
25. I accept that the statement of law by the assessor in relation to this matter was not particularly clear. This may in part be due to the fact that the different strands of the argument advanced by Mr Forde as the basis of his application were not always distinguished from each other. However, I do not consider that there were any inadequacies in this statement by the Legal Assessor which could have affected the ruling of the Panel on abuse of process. The issues for their consideration had been placed before them by counsel, and in their ruling the Panel showed that they addressed those issues.
26. Mr Hockton's second submission in this context is that the Fitness to Practise Panel simply did not consider this matter. He points to their ruling and, in particular, to the fact that in stating their conclusion they said that the principle of double jeopardy was not offended in this case. Mr Hockton says that this indicates that they limited their consideration to the narrow principle of autrefois acquit and did not consider the arguments on abuse of process. I accept that the ruling does refer to the matter as double jeopardy, but to my mind it is clear that they were addressing the abuse of process argument. Mr Forde, in his submissions, had come close to conceding the double jeopardy point. He accepted that the Panel was not a court of competent jurisdiction. So there would have been little, if anything, for them to say in relation to the double jeopardy point, other than that they were not a court of competent jurisdiction. Moreover, Mr Forde used the words "double jeopardy" to refer to the abuse of process argument at certain points of his submission, and he told the Panel that the points were interlinked. In this regard I also draw attention to the following exchange between the Assessor and Mr Forde immediately before the Assessor made his statement:

"THE LEGAL ASSESSOR: Before I give my advice may I clarify things, please, Mr Forde? The reason that I ask for clarification is that in your skeleton argument it does not actually say what particular parts you are saying are an abuse of process. I understand that your objections, specifically so far as paragraphs 10(a)(i), (iii) [and] (iv) are concerned — you object to those and say they are an abuse of process as they have, to use your words, 'already been adjudicated upon' and, therefore, you say that those, therefore, are a matter of autrefois acquit and so you have raised similar arguments, as I understand it, so far as 10(b)(i) and (ii) are concerned?

MR FORDE: Correct, sir."

27. It seems to me that in the course of its decision the Panel properly considered to what extent the charges had already been adjudicated upon by the Crown Court, which was the basis of the abuse of process application. It is in this sense that the Panel referred to its conclusion that the principle of double jeopardy was not offended. It is fair to say, as Miss White, who appears for the General Medical Council on this appeal, submits, that the assessor was here addressing the matter in the terms in which the argument had been presented by Mr Forde. The Panel had been addressed by counsel on Redgrave and, on the basis of transcripts, in relation to what had happened at the trial. In delivering its ruling, the Panel was clearly addressing the argument addressed to it on abuse of process, in particular the guidance in paragraph 46 of Redgrave. They were considering the similarity of the charges. Their conclusions were that the role of the Panel was different from that of a court in criminal proceedings, that if all the paragraphs in the charges were taken at their highest they would not constitute a finding of guilt on the criminal charge on which Dr Sacha was acquitted, and that the finding of not guilty in the Crown Court did not mean that each of the facts in the allegations before the Panel had been adjudicated upon. However, this appeal is by way of re-hearing. Therefore, I have to decide whether the Panel was wrong in its conclusions, or if its decision was unjust because of a serious procedural or other irregularity in its proceedings. I shall consider the various charges in turn.
28. First, the allegations relating to the examination of the breasts. At Dr Sacha's trial there was no charge on the indictment relating to the allegation of touching of breasts. The guidelines approved by Simon Brown LJ in Redgrave are not, of course, the totality of relevant considerations in determining whether disciplinary proceedings are an abuse of process. Nevertheless, they provide great assistance and the argument before me has concentrated on these formulations.
29. Mr Hockton submits that the charges in relation to touching Patient C's breasts fall within both limbs (a) and (b) of the Redgrave guidelines. I have great difficulty in seeing how these allegations could fall within the first limb of Redgrave, that is that the conduct in question is in substance the same as the criminal charge which has resulted in an acquittal. The charge on which the doctor was acquitted was one of assault by penetration and related to the internal examination. There was no charge in the criminal trial relating to the allegation of touching the patient's breasts. However, at first sight at least, there may be greater force in the alternative submission that the charges relating to touching the patient's breasts fall within the second limb of guidance in Redgrave, that is that although the conduct under investigation is not in substance the same as the criminal charge which resulted in an acquittal it may nevertheless be unfair to proceed where a matter essential to the proof of the misconduct was in issue in the criminal proceedings and has been resolved in the defendant's favour.
30. Mr Hockton was clearly correct in his submission that the subject matter of this group of charges was in issue in the criminal proceedings. First, the Crown included the allegation in its opening. Secondly, Patient C gave evidence that the Dr Sacha prodded both of her nipples and then squeezed the left one. (Transcript page 889). Thirdly, Witness D, the sister of Patient C, who gave evidence of a recent complaint, said that the complaint had included an allegation that the doctor had touched her nipples, although she did not say that her sister had said that he had squeezed her nipple or anything of the kind. Fourthly, the expert witnesses, whose evidence related primarily to the internal investigation, and were called for that purpose, nevertheless were asked certain questions about the touching of the breasts. They agreed that it would be proper to carry out an examination of the breasts while checking the heart. Fifthly, the Crown relied on it as clear evidence of improper motive. In his closing speech, counsel for the prosecution submitted to the jury that if Dr Sacha did touch and squeeze the nipple and touch the breast in an inappropriate way, that may assist them in deciding if the internal investigation was an act of deception under the guise of a purported medical purpose. (Transcript page 1035 A-C). Sixthly, the judge, in his summing-up, told the jury that they could take this evidence into account and, if they were sure it was true, should consider whether it supported the allegation against the doctor in relation to the internal investigation. (Transcript page 1063 D).
31. The more difficult question is whether the issue arising from this allegation was resolved in Dr Sacha's favour by the jury's verdict. Mr Hockton submits that the jury must have concluded that the allegation of touching the breasts was untrue, otherwise they would have been bound to conclude that the allegation of indecency, which they had to decide in relation to the internal investigation, was made out. He says that it is inconceivable that Dr Sacha would have been acquitted of indecency, had the jury considered that his conduct in the consultation, with specific reference to the nipple allegation, was sexually motivated.
32. However, it is necessary to consider this submission in the context of the precise terms of the summing-up and what the judge told the jury about possible routes to verdict. In order to do so, it is necessary to explain the relevance of a diagram which appeared in the notes of Patient C's consultation with Dr Sacha. The diagram was roughly in the shape of a hexagon. Dr Sacha's evidence was that it depicted Patient C's stomach area. The lines on the diagram, he said, represented the areas where Patient C had complained of pain. His evidence was that he had drawn the diagram during the consultation. The evidence of the expert witnesses was that the diagram was entirely consistent with Dr Sacha's evidence and did show that there was tenderness in the lower abdomen. Both experts agreed that if the patient had complained of pain in those regions an internal examination was clinically justified. The note of the consultation did not record that an internal examination had been carried out. Both experts considered that it would have been desirable for the doctor to have recorded this fact, but accepted that it was by no means unusual for some doctors not to keep a note of anything which was not positive. Dr Sacha said in evidence that that was his policy.
33. In his summing-up the judge reminded the jury of the charge and added (Transcript page 1054):

"I just point out, members of the jury, that the offence itself in this case — the charge itself — does not contain any allegation relating to the alleged touching of the nipples. The only significance of that, potentially — and I will come back to it — is if it assists you in determining what the purpose of the examination was, but it is not, of itself, a separate allegation relating to this particular charge."

I draw attention to the word "potential". The judge directed the jury as to the elements of the offence charged and told them (at transcript page 1054):

"Now, members of the jury, in the circumstances of this case, where the actions of a doctor are concerned, the only question actually you need concern yourself with is this: 'What was the purpose of the doctor in carrying out this digital penetration?' If the purpose was to carry out a proper medical examination, that is the end of the matter."

The judge went on to explain that in such circumstances there would be consent and reasonable belief in consent. However, if the doctor had deceived the patient, it was automatically presumed that she did not consent. Later in his summing-up the judge reminded the jury of the evidence in relation to the diagram. He said (Transcript pages 1061-1062):

"There is no question at all, members of the jury, you may think, that if that diagram is accurate, and genuinely reflects the defendant's understanding of where the pain or tenderness was, there can be no criticism whatsoever of the carrying [out] of an internal examination in this case. Indeed, it may well be it would have been irresponsible for a doctor not to have carried it out in those circumstances. So, members of the jury, you can only be sure of guilt here if you are sure that the notes at page 9, and in particular the diagram — which both experts agree identified tenderness in the lower abdomen — were deliberately false. The prosecution accept that it is only if they can make you sure of that that this defendant could begin to be guilty of this offence. If that diagram accurately recalls what the doctor was told, or indeed if it reflects what he genuinely, perhaps mistakenly, understood he was being told, then there would have been every justification for this internal examination. The prosecution say the record is deliberately false, and that he is, on that diagram, identifying lower abdominal pain which simply did not exist, and he was told did not exist. Members of the jury, you will bear in mind that the diagram was contemporaneous — that is it was made at the time of the investigation, of the appointment. No one has suggested it was completed later, and there was no opportunity for the doctor to have done that. You will remember he was kept in a cell overnight, and the records were taken.

So, members of the jury, you have to consider whether this doctor would have deliberately distorted the record, and deliberately misrepresented this young woman's medical condition even before he realised that he was under suspicion. You may ask yourselves why, if he deliberately wanted to cover his tracks, he would not have put on the form that he had carried out a vaginal examination — after all, he admitted that as soon as the police interviewed him."

34. A little later in the summing-up the judge returned to the relevance of the allegation of touching the nipples (Transcript page 1063):

"The prosecution say you can believe what the complainant says, and that the doctor has falsely recorded these notes. They rely on the description of him squeezing the left nipple. As I emphasise, that is not part of the charge, but it is right to say you can take it into account, assessing that evidence, for what it is worth, and you decide whether you believe it, whether you can be sure of it, and, if so, whether it supports the case against the doctor. But, as I say, he can only be guilty of this offence if you are sure that he carried out the internal examination for an improper sexual purpose, and you could only reach that conclusion, members of the jury, if you are sure the information on the medical record is false."

So the judge brings the jury's focus back to the issue of the falsification of the record. That may explain his use of the word "potentially" in the passage of the transcript at page 1054, that it is potentially relevant in that way, but the jury may not have to decide it.

35. In summarising the defence case the judge said (Transcript pages 1064-1065):

"The defence say the doctor never did squeeze the nipple — he denies it. They accept that some accidental touching could have occurred. You may want to consider that evidence carefully and whether, with hindsight, or perhaps having formed the view that the doctor acted improperly, there may have been some exaggeration or misconstruction of something which did occur. So the defence say you cannot possibly be sure that he falsified this record. Indeed, they suggest that really it is fanciful to believe that he would have done that at the time of the investigation itself.

So there it is, members of the jury. You have to be sure that he intentionally deceived this patient, and that he intentionally and deliberately produced a false record at the time. Only on that basis can you convict. If you are sure of those matters, you must convict him of this offence. If you are unsure about them, you must acquit him. There it is."

Once again the focus of the jury is brought back to the issue of the falsification of the records. Clearly the judge considered that that lay at the heart of the case. If that issue was decided in favour of the defendant, the case was over.

36. When the verdict is considered in the light of these directions, it is not possible to say that Dr Sacha was necessarily vindicated on the allegation of indecent assault by touching Patient C's nipples. On reading the entire summing-up, it becomes clear that the whole focus of the jury's consideration of the issues is directed to the question whether the record was falsified. That was a matter on which there was compelling evidence favourable to the defendant. In these circumstances, I find it impossible to conclude that the allegation in relation to the touching of Patient C's breasts was decided in favour of the defendant. On the contrary, the likelihood is that the jury did not address the issue because they simply did not need to do so.
37. Mr Hockton submits that it is inconceivable that Dr Sacha would have been acquitted of indecency had the jury considered that his conduct in the consultation, with specific reference to the allegation in relation to the nipples, was sexually motivated. But the jury did not have to consider the entire conduct — the charge related only to the internal investigation. If the record was not falsified, then that investigation was clinically justified. The jury did not have to consider anything else. As the judge put it (Transcript, page 1054) the only question actually they needed to concern themselves with was what was the purpose of the doctor in carrying out the digital penetration. If the purpose was to carry out a proper medical examination, that was the end of the matter.
38. The passage in the summing-up (at page 1063), which I have quoted above, in particular the juxtaposition of the first two sentences, has prompted me to give anxious consideration to the question whether the jury's conclusion that the diagram was a genuine contemporaneous document necessarily means that they must have rejected the allegation of indecent touching of the nipples. I do not understand the judge (at page 1063) to have been drawing the jury's attention to the relevance of the alleged touching of the nipples to the falsification issue. On the contrary, when the whole passage is read, the judge is drawing their attention away from the possible significance of the touching of the nipples and inviting them to concentrate on the authenticity of the diagram. So far as that issue was concerned, the judge had already reminded the jury of the evidence relating directly to the diagram and the circumstances in which it might have been made. Furthermore, the Crown did not specifically link the allegation of indecent touching of the nipples to the issue of the authenticity of the diagram. In particular, the jury were not invited by the Crown to conclude that the diagram must have been falsified because of the evidence of the touching of the nipples. Rather, the allegation of indecent touching of the nipples was relied on as relevant to the wider issue of the doctor's motive in carrying out the internal examination. On the other hand, it was evidence they could have taken into account in deciding whether the record was false. However, there is nothing here to indicate that the jury did decide the issue of the touching of the nipples in favour of the doctor in coming to its conclusion on the diagram. On the contrary, a possible route to verdict indicated by the judge did not require a decision on this issue. Moreover, it is not possible to say that in coming to its conclusion that the diagram was genuine the jury must have rejected Patient C's allegation of indecent touching of the nipples. Even if there had been indecent touching of the nipples, the diagram could still have been genuine and the internal investigation justified.

The internal examination

39. I have referred above to the fact that the charges before the Fitness to Practise Panel relating to the internal examination were limited in scope by comparison with the scope of the offence with which the doctor was charged. The doctor admitted the charges in paragraphs 10(b)(iii) and (iv), that he did not offer Patient C a chaperon for the examination and did not record the examination in the medical records. The doctor denied the charges in paragraphs 10(b)(i) and 10(b)(ii), that he did not explain the purpose of the examination and did not obtain her express consent. While it was alleged that his conduct was, in various aspects, inappropriate, unprofessional and an abuse of professional position, it was not alleged that it was sexually motivated. The objection on grounds of abuse of process applied only to the charges in paragraphs 10(b)(i) and 10(b)(ii), that is the doctor did not explain the purpose of the examination and did not obtain the patient's express consent. I have already referred to Miss Baxter's explanation to the Panel as to why the charges in relation to this matter did not allege an indecent assault.
40. The disciplinary charges in respect of the internal examination do not allege a sexual motive, nor do they allege that the doctor did not reasonably believe Patient C consented. To my mind, the General Medical Council was clearly correct in concluding that the allegation of indecent assault by way of internal investigation could not properly be the subject of disciplinary charges following the doctor's acquittal on precisely this allegation. Mr Hockton complains that there has been, as he puts it, manipulation here. He says that the charges have been framed in the way in which they have in an attempt to circumvent an abuse of process argument. He says that this is an artificial attempt to get around the requirement of a fair hearing and asks rhetorically: why else should the internal examination be excluded from the allegation of sexual motive in paragraph 11(d)? However, I consider that there were sound reasons requiring that the charges be limited in this way, as Mr Hockton would no doubt accept. I do not consider that there is any improper motive in framing the disciplinary charges in this way.
41. That leaves the question whether it is an abuse of process to pursue disciplinary charges in respect of these much less serious allegations in relation to the same incident. The issues before the GMC were whether the doctor had explained the purpose of the examination and obtained express consent to the examination. These allegations, and the admitted allegations of failing to offer a chaperon and failing to record the examination notes, raised questions of good medical practice. If proven, they would fall far short of a finding of guilt of the serious offence with which the doctor had been charged, and of which he had been acquitted. To my mind there is no abuse of process in the General Medical Council instituting proceedings in relation to these specific matters in these circumstances for the purpose of maintaining professional standards and protecting the public. For these reasons, I do not consider that the present case falls within the second category identified by Simon Brown LJ in Redgrave. In this case the conduct under investigation is not in substance the same as the criminal charge of which the doctor was acquitted, nor is it a case where a matter essential to the proof of the misconduct was in issue in criminal proceedings and has been resolved in the defendant's favour.
42. In the course of his reply this morning, Mr Hockton advanced what I think is a new line of argument. It is based on cases concerned with the circumstances in which a second prosecution on indictment may be brought. In this regard he drew my attention to the ruling of Barry J in R v Riebold [1967] 1 WLR 674. There the defendants had been charged on an indictment containing two counts of conspiracy and 27 counts of larceny and obtaining by false pretences. The latter counts related to overt acts in support of the conspiracy allegation. The prosecution went ahead on one conspiracy count alone. After conviction of both defendants and successful appeals by them, the prosecution sought leave to proceed on the remaining 27 counts of the original indictment. The judge held that if leave were given it would amount to granting a complete retrial of the case and that that would be oppressive. Leave was therefore refused. In the course of his judgment he refers to a passage from the speech of Lord Devlin in Connelly v Director of Public Prosecutions [1964] AC 1254 at pages 1359-1360:

"As a general rule a judge should stay an indictment (that is, order that it remain on the file not to be proceeded with) when he is satisfied that the charges therein are founded on the same facts as the charges in a previous indictment on which the accused has been tried, or form or are a part of a series of offences of the same or a similar character as the offences charged in the previous indictment... But a second trial on the same or similar facts is not always and necessarily oppressive, and there may in a particular case be special circumstances which make it just and convenient in that case. The judge must then, in all the circumstances of the particular case, exercise his discretion as to whether or not he applies the general rule."

43. However, it seems to me that these authorities cannot assist Dr Sacha. They are concerned with the circumstances in which it would be unfair or oppressive to bring a second prosecution. Here we are concerned with disciplinary proceedings where very different considerations are in play. To my mind there is no general principle that it would be unfair to bring disciplinary proceedings in respect of a matter which forms part of the same course of conduct which has given rise to a criminal charge on which the individual concerned has been acquitted, if the matter could have been the subject of a criminal charge in those proceedings.
44. Before me, Mr Hockton also advanced a wider case of unfairness. He argued that there was unfairness in proceeding with these charges in that it was not possible for Dr Sacha to have a fair hearing. Miss White, for the General Medical Council, objects to this line of argument on the basis that these arguments were not advanced before the Panel. Nevertheless, I propose to address these arguments on their merits. In this regard Mr Hockton relies on the following matters:

(1) He says that there were significant differences between the evidence given by Patient C and Witness D at the trial and at the hearing before the Panel. He suggests that both had attempted to improve their evidence by the time of the disciplinary proceedings. I accept that there were differences in the accounts given by these witnesses. There was no actual evidence of collusion by these witnesses. However, these were matters which could have been examined in the hearing before the Panel. The doctor's representatives had a full transcript of the criminal trial. In this case I note that little, if anything, was made of these discrepancies at the hearing before the Panel. Furthermore, at the time of the application to the Panel, the evidence had not been given. Mr Hockton is entitled to say that what followed demonstrated the risk of unfairness. However, to my mind there is nothing in this which could amount to such unfairness as to make the proceedings an abuse of process. I am fortified in that conclusion by the recent judgment of Irwin J in R (Shyam Sinha) v General Medical Council [2008] EWHC 1732 (Admin).

(2) Mr Hockton referred to a discussion which had taken place between a representative of the GMC and Patient C, although he conceded that nothing improper had occurred. He simply said it demonstrated the possibility of unfairness. To my mind this takes the matter no further.

(3) He claimed that the doctor had been deprived of the forensic advantage of not disclosing his evidence in advance of the hearing before the Panel. Even if this is to be regarded as a legitimate forensic advantage, the requirement of prior disclosure of one's case cannot be regarded as so unfair as to make the proceedings an abuse of process. In this regard I note that certain procedures before the General Medical Council have recently been revised so as to require the disclosure of the nature of a doctor's case in advance of the hearing.

(4) Mr Hockton pointed to the ordeal undergone by Dr Sacha in effectively standing trial for a second time. In this regard he referred to the observations of Elias J, after the trial, urging the prosecution to give the most careful consideration to whether it would be appropriate to bring a further prosecution in relation to the allegations by Patient A. Mr Hockton points to the age of Dr Sacha — he is now 62 — and says that he had difficulty in giving evidence before the Panel. There is some evidence that he showed signs of tiredness when giving evidence before the Panel.

45. I do not underestimate the immense pressure that this whole history must have imposed upon Dr Sacha. However, this is not a case where his condition made it oppressive or unfair for there to be a disciplinary hearing. In my judgement, none of the matters identified by Mr Hockton would, or did, prevent a fair hearing before the Panel.
46. Finally, in this regard, I would observe that the General Medical Council in deciding whether to pursue disciplinary proceedings, is required to have regard to the objective of such proceedings. Section 1(1A) of the Medical Act 1983 states that the main objective of the General Council in exercising their functions is to protect, promote and maintain the health and safety of the public. Disciplinary proceedings have very different objectives from criminal proceedings. It is for this reason that the observations of Elias J at the end of the criminal trial, which revealed a real and entirely understandable concern at the prospect of a further criminal trial in relation to the allegations of Patient A, do not apply to the question of the fairness of disciplinary proceedings.
47. For these reasons I have come to the conclusion that the disciplinary proceedings were not an abuse of process.

The Galbraith submissions

48. The second basis of this appeal relates to the Panel's rejection of a submission made by Mr Forde at the conclusion of the case for the General Medical Council. He submitted that there was insufficient evidence for the charges concerning Patient A to proceed. An application was made under Rule 17(2)(g) of the General Medical Council (Fitness to Practise) Rules 2004. In making the application, Mr Forde made the following submissions:

(1) He accepted that he could not say that there was no evidence to support the charges relating to Patient A. However, he submitted that the evidence of Witness A was so tenuous, vague and inconsistent with documentary evidence as to make it impossible for the Panel properly to find those charges proved. In other words, he relied on the second limb of Galbraith [1981] 1 WLR 1039.

(2) He pointed to the fact that the incident was alleged to have occurred a long time ago, in 2001, and no complaint had been made for some 4 years. Patient A accepted that she had a history of depressive illness and that a symptom of that illness was suffering from memory problems.

(3) Her initial account in her evidence had been that the incident occurred just before Easter. She linked the incident with Dr Sacha producing Easter eggs for her children. She said that she left her work at the surgery a couple of days after the incident. When this was tested in cross-examination, she accepted that it could not have been Easter and she thought it was the May Bank Holiday. That change in evidence resulted in an amendment to the charges to delete a reference to the Easter eggs.

(4) Mr Forde pointed to her evidence that her brother had later attended with her at a consultation with Dr Sacha and that she instructed him to say nothing about the alleged earlier incident.

(5) He also drew attention to the fact that Patient A had, on two occasions, suggested that Mr Forde was ascribing to her the motives of a disgruntled employee when he had done no such thing.

(6) He suggested that Patient A was somewhat delusional:

"In my submission, in terms of personality, characteristics, demeanour and the malleability that she showed in terms of the ability to shift from date to date, means that she is a thoroughly unreliable witness, not a witness that you could rely upon in support of an allegation which ultimately would have to be proved beyond reasonable doubt, and at this early stage in the proceedings I would urge you to reject her evidence and her allegations, to find her to be sufficiently unreliable that you can decide that this aspect of the case, at least, should not be continued with."

49. The application was resisted by Miss Baxter for the General Medical Council. The Legal Assessor made his statement. The Panel retired and later delivered a decision rejecting the application. They said:

"The Panel accepts that there may be inconsistencies in Patient A's evidence relating to timings, but that she was consistent in her recollection of what happened to her. Having considered all the information before it, the Panel concluded that Patient A's inability to provide precise dates and times does not mean that her evidence as a whole was inherently unreliable. The Panel has therefore determined that sufficient evidence has been adduced which is capable of finding paragraph 6 proved and rejects your submission in relation to Patient A."

50. Before me, Mr Hockton has essentially rerun the Galbraith submission of no case, adding further examples of inconsistency and inadequacy in the evidence of Patient A. Her entire account, he submits, is consistent with an embarrassing misunderstanding and falls significantly short of the sexually motivated conduct alleged. I consider that the Panel was clearly correct in concluding that, despite its deficiencies, the evidence of Patient A was capable of proving the charges to the required standard. There were undoubtedly inconsistencies relating to the time at which the incident is alleged to have occurred and to other circumstantial matters. However, it is possible that she had been mistaken as to these matters while the core of her allegation was accurate. Moreover, while Patient A's personality and mental health were matters to be taken into account, they did not render her allegations incapable of reasonable belief. The case was fit to be left for consideration by the fact-finding body on its merits. The Panel was entitled to reject the submission for the reasons it gave.
51. So far as the wider submission made by Mr Hockton before me is concerned — that is, even if the evidence was accepted, it was incapable of making out the allegation of sexually motivated conduct — I consider that there is a clear basis in Patient A's evidence to support the allegations made, in particular her evidence was that she perceived an attempt to kiss her. In this regard Mr Hockton also criticises the Legal Assessor for failing to draw to the attention of the Panel the need to disregard the allegations by Patient C when considering the submission of no case in relation to Patient A. However, there is nothing in the reasoned decision of the Panel to indicate that they did take account of the allegations made by Patient C in this regard. On the contrary, the reasoning, and indeed the argument, had been focused entirely on the allegations of Patient A. Although Mr Forde did raise certain matters following the statement by the Legal Assessor, he did not raise this matter. In these circumstances, there cannot fairly be thought to have been an error of such significance as to invalidate the decision.

Findings of fact

52. The third basis of this appeal concerns the Panel's findings of fact. In advancing these submissions, Mr Hockton accepts that it is difficult to challenge findings of fact, but submits that there must be sufficient concern here to justify quashing the findings. First, he submits that the Panel wrongly made adverse findings under paragraphs 6 and 11 in relation to Patient A. He says that they failed to have any, or sufficient, regard to her delay in making complaint, the circumstances in which the complaint was made (i.e. after publicity concerning Patient C), Patient A's unreliability and the tenuous nature of the allegations. The Panel's decision on these disciplinary charges relating to Patient A was in the following terms:

"The Panel considered Mr Forde's submissions about Patient A's unreliability. Her memory about exactly when she worked as a receptionist for you, the relationship between the giving of Easter eggs and the alleged incident, and her subsequent attendances with you as a patient was unclear and contained discrepancies. However, the Panel understand that depressive illness and the use of antidepressant drugs is likely to cause impairment of short-term memory and result in deficits of the detailed recall of events.

The Panel found Patient A to be a credible witness and did not consider that the discrepancies in her evidence in relation to the actual dates of the events alleged meant that she was an inherently unreliable witness. She was adamant that the events took place on a Wednesday afternoon/evening. The Panel noted the evidence from you that the medical centre was closed on a Wednesday afternoon, allowing staff to perform administrative tasks and that the practice manager, Jean Caiger, went home at 6.00 pm, meaning that Patient A could have been alone in the medical centre.

Patient A was certain that the events took place shortly before she left her employment, which the Panel heard from you was probably Friday, 25th May 2001. The Panel noted an entry in her medical records of a consultation with Dr Salugia on Thursday, 24th May 2001, in which she was described as 'very upset'. Her evidence was that the incident occurred on a Wednesday close to a bank holiday and this would be consistent with it having occurred in the last week in May.

The Panel found Patient A's evidence of what happened in the staff room to be cogent and credible. It heard evidence from you that you attended an ENT clinic at Hinckley and District Hospital on Wednesday afternoon from 1.00-1.30 pm until 5.00-5.30 pm and that you played hockey thereafter. However, on further examination, it appeared that this would not have precluded you from visiting the medical centre on a Wednesday evening.

The Panel preferred Patient A's clear, descriptive and unshaken evidence as to what happened in the surgery staff room. The Panel took into account the close relationship between you and Patient A, which resulted in you offering her a job in an attempt to improve her self-esteem. Following this incident, there was a clear breakdown in your relationship. You did nothing to inquire about her mental health or why she left your employment. Further, there was an obvious change in the pattern of consultations in Patient A's medical records."

In addition, the Panel made these further findings:

"The Panel determined that as a doctor, both as Patient A's medical practitioner and employer, you were in a position of trust. Patient A told the Panel that she both trusted and depended on you during this time in her life, when she was particularly vulnerable. The Panel has determined that your actions in attempting to kiss Patient A were inappropriate, unprofessional, an abuse of your professional position and sexually motivated."

53. I consider that these conclusions were open to the Panel. In their ruling they demonstrated that they had taken account of the submissions made to them on the alleged unreliability of Patient A's evidence. They expressly refer to a number of specific criticisms of her evidence. In the result, they believed the evidence of Patient A in preference to that of Dr Sacha. It was open to them to come to that conclusion. The conclusions as to the significance of that conduct set out in the final paragraph, quoted above, are matters of judgement. These were conclusions to which they were entitled to come.
54. Next Mr Hockton criticises the Legal Assessor's advice at the fact-finding stage. He submits that the Assessor failed to advise the Panel to disregard the evidence of one complainant when considering the allegation of the other complainant. The starting point for this submission is that the evidence of Patient A and Patient C respectively is not admissible to support the allegations made by the other. The allegations are too dissimilar. Thus, Elias J refused to allow the jury to be told about the allegations of Patient A because they were incapable of supporting the allegations of Patient C. I entirely accept this starting point. The advice of the Legal Assessor in question is set out at page 525 D:

"You must consider the evidence against and for Dr Sacha on each paragraph of the allegation separately, but your important obligation to consider each paragraph separately on its merits does not mean that you should ignore all the evidence of background circumstances. This may well be evidence which will assist you in reaching a decision."

55. Mr Hockton submits that this is not as clear as it should be. In particular, he submits that the advice to consider each paragraph separately is insufficient, in particular given that paragraph 11 includes allegations relating to both Patient A and Patient C. He also submits that the reference to background circumstances may have been understood by the members of the Panel as permitting them to take account of the allegations of one complainant when considering the allegations of the other. However, I am entirely satisfied that the members of the Panel would have understood this advice to require them to consider the allegations separately. That is the effect of the words at page 525 D. In any event, before they retired they were reminded of the position, once again, by Mr Forde. At page 528 the following appears in the transcript. The Chairman invites counsel to comment on Legal Assessor's Advice. Mr Forde says:

"Sir, only to reiterate the point in relation to separate consideration; that consideration of each of the patients' allegations should be separate. I am sure you will bear that in mind."

56. In these circumstances, I am entirely satisfied that the members of the Panel would have approached this evidence on the correct basis. I also note that in giving their reasons they gave clear and full reasons in the case of the allegations made by each complainant.
57. So far as the Libman test is concerned, was there an error which could have invalidated the decision? In my view, there clearly was not.
58. Next it is contended that the Panel wrongly concluded that the two complaints were sufficiently closely related so as to constitute a course of conduct. Here Mr Hockton relies on a passage at page 18 of the decision:

"The Panel considered that there had been a repetition of behaviour since the first event took place in 2001, when you behaved in a sexually motivated way towards a vulnerable female patient. You again deliberately behaved in a sexually motivated way towards a vulnerable female patient in 2005. Although the nature of the incidents may have been different, you behaved in a sexually motivated manner to two patients, both of whom were vulnerable for different reasons. This behaviour was separated by 4 years. The Panel has heard no evidence that you have any insight into the gravity of your actions and it therefore cannot be sure that you do not pose a significant risk of repeating this behaviour."

Mr Hockton further submits that this passage supports his case that the Panel were influenced by one complainant in considering the case of the other. I am unable to accept these submissions. In this passage the Panel was considering sanctions, a distinct exercise from fact finding. In that regard, it was entitled and required to have regard to the fact that it was not concerned with a single incident, but that there were two incidents which involved sexually motivated behaviour towards a vulnerable female patient. Moreover, the Panel's statement makes clear that it was fully aware that the nature of the two incidents was different and that they took place 4 years apart.

59. Mr Hockton criticises the Legal Assessor for failing to advise the Panel about the need for caution in considering the complaint of Patient A by reason of the staleness of the complaint and the potential contamination of her evidence by knowledge of the complaint made by Patient C. His advice on delay was in the following terms (at the transcript of Day 8, page 22):

"We are concerned in this case with events which took place which are said to have taken place a very long time ago. The incidents in relation to Patient A are alleged to have happened in 2001 and Patient C in February 2005. You must appreciate that because of this there may be a danger of real prejudice to Dr Sacha. This possibility must be in your mind when you decide whether the GMC has made you sure of the facts you are deciding.

You should make allowances for the fact that with the passage of time memories fade. Witnesses, whoever they may be, cannot be expected to remember with crystal clarity events which occurred many years ago. Sometimes the passage of time may even play tricks on memories.

You should also make allowances for the fact that from Dr Sacha's point of view the longer the time since an alleged incident, the more difficult it may be for him to answer it. For example, has the passage of time deprived him of the opportunity to put forward an alibi and evidence in support of it? You only have to imagine what it would be like to have to answer questions about events which are said to have taken place 6 years ago to appreciate the problems which may be caused by delay. Even if you believe that the delay in this case is understandable, if you decide that because of this Dr Sacha has been placed at a real disadvantage in putting forward his case, take that into account in his favour when deciding if the GMC has made you sure of the facts that you are deciding."

To my mind, this was entirely appropriate advice.

60. Mr Hockton also criticises the assessor for failing to advise the Panel about the potential contamination of Patient A's evidence by knowledge of the complaint made by Patient C. Here Patient A's unchallenged evidence was that she did not know what the allegation was, although she was clearly aware that it was some sort of sexual complaint. Dr Sacha's representatives did not suggest, either in cross-examination or in submissions to the Panel, that her evidence could have been contaminated. In these circumstances, I consider that there was no obligation on the Legal Assessor to deal with the possibility.
61. Finally, Mr Hockton submits that the Legal Assessor failed to give advice about the need to disregard any part of the material in the criminal trial relevant to the abuse of process argument which did not form part of the evidence before the Panel. I consider that the Panel would have been well aware of the purpose for which they had been referred to a transcript of a criminal trial, and well aware that they had to decide the case on the evidence that they had heard. Furthermore, Dr Sacha's legal representatives at the hearing did not consider that there was any need to raise this issue, quite correctly, in my view. In any event, it is difficult to see in what way that information could have been detrimental to Dr Sacha.
62. For the reasons which I have set out, I would reject the grounds of appeal advanced on behalf of Dr Sacha. As the challenge to the finding that his fitness to practise was impaired and the order of erasure depended on the specific grounds advanced, the appeal will be dismissed.
64. I am very grateful to counsel for their submissions. I realise there may be consequential matters, but I am told that we are probably the only people left in the building.
66. MISS WHITE: (Pause). I apologise for talking in front of my Lord.
67. MR JUSTICE LLOYD JONES: Not at all.
68. MISS WHITE: It is a simple matter of costs. I have served a schedule which my learned friend helpfully indicates, I think, that he can agree. I was informing him that I had been told that there is a refresher fee in (inaudible) schedule.
69. MR JUSTICE LLOYD JONES: I have that schedule somewhere. Let me see if I can find it.
70. MISS WHITE: My Lord, I could pass my copy up if that assists.
71. MR JUSTICE LLOYD JONES: I have it here. Where do we stand in relation to this?
72. MISS WHITE: My Lord, we have an application for costs. The total in the schedule for today is £9,361.69. That was assumed to go on until Friday last week.
73. MR JUSTICE LLOYD JONES: Yes.
74. MISS WHITE: On top of that I have a refresher of £1,000 plus VAT.
75. MR JUSTICE LLOYD JONES: Is the General Medical Council not able to recover value added tax on its fees?
76. MISS WHITE: My Lord, I assume not, on the basis that VAT is usually claimed -- it is included in the schedule.
77. MR JUSTICE LLOYD JONES: Yes, so that is the figure. Mr Hockton, what do you say about the principle, first of all?
78. MR HOCKTON: I do not take issue with the figure, my Lord, or the application for costs. I would ask for 28 days.
79. MR JUSTICE LLOYD JONES: Certainly. What I am minded to say is that the VAT element shall be recoverable only if it is not recoverable by the General Medical Council, by setting it off in the usual way. I make an order in those terms.
80. MISS WHITE: I am grateful, my Lord.
81. MR JUSTICE LLOYD JONES: Anything else? Can I thank you very much for your submissions. I am very much obliged to you both.
82. MR HOCKTON: My Lord, we are most grateful to your Lordship for not only having sat on but given judgment.
83. MR JUSTICE LLOYD JONES: It was important to bring it to a conclusion.
84. MISS WHITE: Absolutely.
85. MR JUSTICE LLOYD JONES: Thank you very much.