England and Wales High Court (Administrative Court) Decisions

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

		MANCHESTER CIVIL JUSTICE CENTRE (To be handed down at Leeds Combined Court Centre)
		01/04/2011

Mr Justice Langstaff- :

1. On 12^th August 2010 a Fitness to Practise Panel ("FTPP") of the General Medical Council ("GMC") found Dr.Bhatt guilty of charges brought against him relating to 6 female patients of his at the Rosehill Medical Centre in Rotherham where he had been in general practice. These were serious findings in that in respect of four of those patients the Panel accepted that he had been sexually rather than medically motivated when he intimately examined them. In consequence, the Panel determined that his name be erased from the Register.
2. He appeals to this court under s.40 of the Medical Act 1983. The grounds relate entirely to the findings of sexual motivation. Although the erasure is also challenged, this is predicated upon the basis that but for the findings of sexual motivation this would not have been imposed. If those findings stand, the appeal against penalty falls.
3. A central feature is that Dr. Bhatt was tried before the crown court on seven counts alleging unlawful sexual interference with the same six patients, and was acquitted by verdict of the jury on all. This has given rise to assertions that he should not have been exposed to jeopardy before the GMC, and arguments that the criminal investigation was so flawed or contaminated that the evidence arising from it should not have been admitted before the FTPP. Mr. Coker Q.C. (for Dr.Bhatt) has focussed on the role of Detective Constable Froggett, of whose conduct he is highly critical, and the way in which the FTPP dealt with it.

The Court's Approach

4. An appeal under s.40 of the 1983 Act is by way of rehearing (CPR Part 52, PD 22.3). 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).
5. In Dr. Bhupinder Sacha v General Medical Council [2009] EWHC 302 (Admin) Lloyd-Jones J. reflected at paragraph 8 on what this implied:

"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."

6. In Southall v General Medical Council [2010] EWCA Civ 407, Lord Justice Leveson gave further guidance (at paragraph 47):

"First, as a matter of general law, it is very well established that findings of primary fact, particularly if founded upon an assessment of the credibility of witnesses, are virtually unassailable (see Benmax v Austin Motor Co Ltd [1955] AC 370); more recently, the test has been put that an appellant must establish that the fact-finder was plainly wrong (per Stuart-Smith LJ in National Justice Cia Naviera SA v Prudential Assurance Co Ltd (The Ikarian Reefer) [1995] 1 Lloyd's Rep 455 at 458). Further, the court should only reverse a finding on the facts if it "can be shown that the findings … were sufficiently out of tune with the evidence to indicate with reasonable certainty that the evidence had been misread" (per Lord Hailsham of St Marylebone LC in Libman v General Medical Council [1972] AC 217 at 221F more recently confirmed in R(Campbell) v General Medical Council [2005] 1 WLR 3488 at [23] per Judge LJ). Finally, in Gupta v General Medical Council [2002] 1 WLR 1691, Lord Rodger put the matter in this way (at [10] page 1697D):

"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. ." "

7. All that said, it nonetheless remains for a court – in "appropriate cases", and if "necessary" - to come to its own view and substitute that for the decision of a disciplinary body (per Auld L.J. in Meadow v General Medical Council [2006] EWCA Civ 1390, [2007] QB 462, at paragraph 120, albeit that he too recognised that the courts should accord disciplinary bodies assessing evidence of professional practice in their respective fields an appropriate measure of respect). At paragraph 128 he added:

"Given the structure of CPR 52.11, the difference between a "review" and a "re-hearing" is clearly thin and variable according to the circumstances and needs of each case, not least in the stipulation in CPR 52.11(2) of the norm for both processes of no oral evidence or evidence not before the lower court. The analysis of May LJ in E.I. Du Pont Newmours & Co v S,T, Du Pont [2003] EWCA Civ 1368, CA, at paragraphs 92-98, is instructive on the overlap between the two, namely that a "re-hearing" in rule 52.11(1) may, at the lesser end of the range, merge with that of a "review", and that "[a]t this margin, attributing one label or the other is a semantic exercise which does not answer such questions of substance as arise in any appeal". But even when a review is a full re-hearing in the sense of considering the matter afresh, if necessary by hearing oral evidence again and, even admitting fresh evidence, the appellate court should still, said May LJ at paragraph 96, "give to the decision of the lower court the weight that it deserves". This elasticity of meaning in the word "re-hearing" in CPR 52 11 should clearly apply also to the same word in the PD. It all depends on the nature of the disciplinary tribunal, the issues determined by it under challenge and the evidence upon which it relied in doing so, how the High Court should approach its task of deciding whether the decision of the tribunal was, as provided by CPR 52.3(a) "wrong", and, whether on the way to reaching such a conclusion, it draws, pursuant to CPR 52.4 "any inference of fact which it considers justified on the evidence". "

8. Mr.Coker QC relied on these words when he came to argue that this court, with its experience of criminal procedures and of issues which turned on fairness in the context of allegations of abuse of process, should give less weight to the views of the FTPP as a body whose particular expertise lay in professional practice and regulation, and correspondingly greater weight to its own experience, and thereby "stretch the elastic" further in these areas than if it had been considering matters of public confidence in the profession.
9. I accept and adopt the approach outlined in these authorities, in particular that although the court will correct errors of fact or approach:

i) it will 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;

ii) that the tribunal has had the advantage of hearing the evidence from live witnesses;

iii) the court should accordingly be slow to interfere with the decisions on matters of fact taken by the first instance body;

iv) findings of primary fact, particularly if founded upon an assessment of the credibility of witnesses, are close to being unassailable, and must be shown with reasonable certainty to be wrong if they are to be departed from;

v) but that where what is concerned is a matter of judgement and evaluation of evidence which relates to police practice, or other areas outside the immediate focus of interest and professional experience of the FTPP, the court will moderate the degree of deference it will be prepared to accord, and will be more willing to conclude that an error has, or may have been, made, such that a conclusion to which the Panel has come is or may be "wrong" or procedurally unfair. To this extent I accept and adopt the submissions of Mr. Coker Q.C.

The Background Facts in Outline

10. The appellant qualified for general practice in November 2005, having reached the minimal standard of competence required only after remedial training. There had been concerns expressed about his clinical skills, his difficulties in forming a clear management plan, and difficulty in communication with patients when trying to explain management and actions and when seeking their consent to it.
11. He joined the Rosehill Medical Centre in January 2007. The allegations relating to his treatment of the six female patients spanned the period from early March until early August that year: but their complaints did not all arise in chronological order. However, before the FTPP each complainant was identified alphabetically, in the chronological order in which the alleged sexual interference had occurred.
12. The first in time of the complaints to be made was that of Patient C. She saw Dr. Bhatt on 22^nd May 2007, complaining of a suspected broken finger. This led to inquiries by the doctor about her general health, during which he discovered she was prescribed propanolol, and that in turn led to a heart examination (by chest auscultation) during the course of which there may inadvertently but entirely properly have been contact with her left breast. It was agreed before the FTPP that the examination was clinically indicated and appropriate. She alleged however that he had unzipped her top, and taken out her breast from the bra cup. She complained to her mother, and then to the surgery, at 14.45 on the day of her appointment. She spoke to Tracey Houghton, the receptionist. Ms. Houghton recorded the complaint an hour later, in reported speech. She wrote that C had said that Dr.Bhatt asked her to undo her top.
13. The complaint was not treated as one of sexual interference at the time by the practice, but the principal of the practice spoke to Dr.Bhatt about it: recollections were later to differ as to what precisely was said. It was argued before the FTPP that if Dr.Bhatt's motivation had been misunderstood, this incident should at the very least have made Dr.Bhatt very careful about what he did when examining other patients, and that he should be very careful always to consider having a chaperone present where there was any possibility of intimate examination. Members of staff (such as Tracey Houghton herself) were prepared and available to act as chaperones if asked. In none of the relevant cases was there a chaperone, and the Panel found as a fact none was offered.
14. Patient F's complaint, which led in short order to other complaints being identified, and to the criminal investigation and trial, was next in time. She saw the appellant on 10^th August 2007. She was desperate to become pregnant, and thought that she was, though she had yet to miss a period, pregnancy tests were negative, and the day before she had been told at A & E that she was not. She was treated and appropriately examined by Dr.Bhatt for a chest infection. He then tried unsuccessfully to reassure her that she was not pregnant. He said that that included examining her breasts for signs of early pregnancy. She alleged that he put his hand inside her top and bra, lifted her right breast from its bra cup, ran his fingers round the areola, nipped the skin of the breast, and flicked the nipple with his fingers several times. She complained almost immediately afterwards about this, first to her partner and stepmother, by phone call to Susan Edwards at Patient Advice and Liaison Service (PALS) (13^th August), then by letter to the PCT (on 22^nd August), then to the police (on 6^th September). Though it was unclear in submissions before the FTPP whether she had spoken to DC Froggett before she complained to the practice, it was common ground before me that she did not, and that her initial complaint was uninfluenced by anything the police might have said to her.
15. Patient E's complaint was received a few days later, when on the 11^th September she too phoned Susan Edwards. She had given birth four days before her examination by the appellant – a difficult delivery, in respect of which it was suspected there might be retained products of conception which had set up an infection. She was referred by her midwife to the appellant, who saw her on the 8^th August. He performed an internal vaginal examination, which was clinically indicated, appropriate, and undoubtedly painful. When she dressed after this, it was said that the doctor did not draw the curtains to afford her privacy, and watched her dressing in a manner she found uncomfortable. When she then returned to the desk, the appellant asked if her breasts were tender. When she said they were he offered to check them, and without removing her upper clothing felt each in turn, reaching into her bra to do so. He then lectured her at some length about the advantages of breast feeding. Afterwards, she immediately expressed concerns to her partner, and raised the matter with the Patient Advice and Liaison Service ("PALS") since she did not want to return to Dr.Bhatt for a check-up.
16. Patient E had heard of neither the complaint of C nor that of F before she, too, complained.
17. Patient C's complaint was relayed to the police by Tracey Houghton on 14^th September.
18. On 17^th September Dr.Bhatt was suspended.
19. On 20^th. September Patient A heard the receptionist talking on the phone to Patient C. She had herself seen Dr. Bhatt on several occasions, including those of the 5^th March and 14^th May 2007 She said that during those examinations, the appellant had touched her breast (that was admitted) and her nipple (that was not). Had she not overheard Mrs Houghton, she might not have pursued a complaint. She had complained to her husband at the time, but her complaint as presented to the FTPP did not accord in detail with her husband's evidence as to that which she told him.
20. Patient D (who was 16 years old) saw the appellant on the 9^th July 2007, with eczema and infection of a nipple. No chaperone was present, despite her age and complaint. He examined her breasts whilst she was on the couch. No allegation arose that that was sexually motivated. However, after that she went to sit at his desk. Whilst she was seated there she claimed that he had touched her nipples in a sexual manner, his hand inside her bra, breathing heavily, and after her bra had been replaced rubbed her breast with his fingertips. Immediately following the appointment she told her mother, her boyfriend, and later a friend of her concerns, which they dismissed. It was only when she read an article, published in the Rotherham Advertiser of 7^th March 2008, reporting the allegations brought by other patients, that she spoke to her family and then on the same day Patient D's father telephoned the Police to complain more formally.
21. Patient B was the last to complain, a week after Patient D. She saw the appellant on 23^rd March, complaining of abdominal pain. He performed internal vaginal and breast examinations. The former was accepted to have been clinically indicated; her complaint that the latter was sexually motivated appears to have been made in response to other allegations, and was withdrawn from consideration by the FTPP by counsel for the GMC during the proceedings.

The Criminal Trial

22. On 1^st December 2008, Dr. Bhatt stood trial at Sheffield Crown Court before HHJ Barber and a jury, on seven counts of sexual assault against the six complainants (two counts related to Patient A, one in respect of each attendance). The interviews between the police and each of the patients had been video recorded on the footing that they were vulnerable witnesses, in accordance with the Youth Justice and Criminal Evidence Act 1999, ss. 19-22.
23. During the course of the trial, the judge rejected an application that there was no case for the Defendant to answer, and admitted the evidence of each of the complainants despite an attack by counsel for the doctor upon the evidence of (in particular) DC Froggett. It was admitted by the Crown that Mrs. Wilson (CPS representative and junior counsel for the crown) had asked DC Froggett to disclose full details of all police contact with the patients, and in particular any contact leading up to the video recorded interviews, and that although he had revealed that he had been in contact with the patients before those interviews, and in the cases of C, E and F had made them aware of the existence of other complaints, he had not revealed that he had asked each patient for an account of the consultations each had had with Dr. Bhatt, although he had been given one (except in the case of C, where he acknowledged that she had outlined her allegations to him on 19^th September).
24. Dr. Bhatt did not give evidence, for medical reasons which were accepted by the judge as making it undesirable that he should do so.
25. On 9^th January 2009 he was acquitted by verdict of the jury.

The Findings of the Fitness to Practise Panel

26. The GMC convened a hearing before the FTPP on 30^th June 2010. There were seven charges (two related to F).

i) In relation to Patient A, it was admitted that the appellant had touched her breast with his fingers, and found proved that he had touched her nipple. The Panel found that he had not given her an adequate explanation of why he considered the examination necessary, what it would involve, nor obtain her consent to it, and failed to make an adequate record of the examinations in respect of her weight, and of a peak flow test. The actions were inappropriate, but the Panel did not find it proved that they were sexually motivated.

ii) In relation to Patient B, it was admitted that the appellant had conducted an internal examination of her vagina, and had examined her breasts, that he had not given her an adequate explanation of why he considered the examination necessary, nor what it would involve, and had failed to make an adequate record of the examinations. It was disputed, but the Panel found proved, that he failed to ask B if she wanted a chaperone to be present. No finding was necessary in respect of any sexual motivation, since charges that there had been were withdrawn during the hearing.

iii) In relation to Patient C, it was admitted that the appellant had failed to ask if she wanted a chaperone to be present. It was disputed, but the Panel found proved, that during the examination he had unzipped her top, put his hand into her bra, and had taken out her left breast from the bra cup. The FTPP found this was sexually motivated, not clinically indicated, and was inappropriate. It was also disputed, but found, that he had not given her an adequate explanation of why he considered the examination necessary, nor what it would involve, nor sought her consent, and that he had failed to make an adequate record of the examinations.

iv) In relation to Patient D, it was disputed, but the Panel found proved, that whilst she was sitting close to him at the consultation desk, and her bra was removed, he had put his hand round each of her breasts, shaken them, was breathing heavily, and rubbed the nipples of her right breast with his fingertips. After she had pulled her bra back up over her breasts, he had put his hand inside her right bra cup, and rubbed the nipple with his fingertips. The FTPP found this was sexually motivated, not clinically indicated, and was inappropriate. It was also disputed, but found, that he had not given her an adequate explanation of why he considered the examination necessary, nor what it would involve, nor sought her consent, and had failed to make an adequate record of the examinations.

v) In relation to Patient E, it was admitted that Dr. Bhatt had conducted an internal examination, and that whilst she was sitting close to the doctor at the consultation desk he had reached into her bra and touched her breasts. It was also admitted that he had not given her an adequate explanation of why he considered the examination necessary, nor what it would involve. It was disputed, but the Panel found proved, that he watched her putting her clothes on, and failed to give her privacy to do so, and that his admitted actions were sexually motivated, not clinically indicated, and were inappropriate. It was also disputed, but found, that he had not sought her consent for the touching of her breasts, had failed to ask if she wanted a chaperone, and had failed to make an adequate record of the examinations. It was found that his touching of the breasts was also sexually motivated.

vi) In relation to Patient F, it was disputed, but the Panel found proved, that he put his hand inside her top and bra, and lifted her right breast out. Though it was admitted there had been an examination in the course of which Dr. Bhatt had run his fingers round the areola of her right breast, it was disputed but found proved that he had also nipped the skin of her right breast, and flicked the nipple of the right breast with his fingers several times. The FTPP found this was sexually motivated, not clinically indicated, and was inappropriate. It was also disputed, but found, that he had not given her an adequate explanation of why he considered the examination necessary, nor what it would involve, nor sought her consent. It was however admitted that he had failed to make an adequate record of the examinations, or to ask F if she wanted a chaperone.

The Challenges to the Findings: Outline

27. Mr. Coker QC argued in impressive submissions first that the panel should have acceded to an application that the charges be stayed for abuse of process, since:

i) Dr. Bhatt had been exposed to jeopardy twice, in circumstances such that, although the rule of autrefois acquit did not apply, the guidance in R (Redgrave) v Commissioner of Police for the Metropolis [2003] 1 WLR 1136, paragraph 46 applied and should have been followed; or

ii) It was unfair to try him again since the trial had exposed inconsistencies in the patients' accounts, their evidence had been contaminated (within the meaning of s.107 Criminal Justice Act 2003), and DC Froggett, as officer in charge of the investigation, had acted with relevant bad faith or incompetence.

28. He argued, second, that the FTPP should have acceded to an invitation to rule the admission of the evidence of A, C, D, E and F as to sexual motivation wrong and unjust. He relied again on bad faith or incompetence in the investigation to the extent that there had been significant breaches of the Code to the Criminal Procedure and Investigation Act 1996 which unfairly hindered Dr. Bhatt's ability to challenge the evidence against him by testing its reliability and independence.
29. Third, he maintained that the findings in respect of C, D, E and F were wrong and unsupported by the evidence (again, relying on the conduct of the police investigation, inconsistencies in account, and that contamination could not be excluded, as well as submitting that "they failed to have sufficient regard for the absence of any collateral evidence or conduct consistent with sexual motivation").
30. Fourth, the Panel had wrongly determined that the patients' allegations were cross-admissible: though it had said in its findings that it had not needed to rely on any cross-admissibility, and had reached its findings without regard to that, he argued that it was unreal since it would have involved an effort of Herculean proportions for the evidence of one not to have affected the evidence of another.
31. In conclusion, therefore (and fifth), although the Panel would have been entitled to impose some sanction on the doctor in respect of his admitted failings in respect of explanation, consent taking, record keeping and in failing to advise or ask about chaperones, the sanction of erasure from the register was too great for these, and these are all the Panel should have found.

Submissions in Detail

32. I turn to examine these submissions in detail, with the following initial observations. They depend critically upon two features. The first is that there may be thought to be a fine line between an intimate examination conducted by a doctor for clinically appropriate reasons, and a similar examination motivated by sexual reasons. This may itself depend critically upon the perception of the patient, and her reporting of the physical realities in the light of that perception. The second is the alleged failures of the Police when investigating to ensure that the evidence of one patient was not open to contamination by her knowledge that were there were similar complaints made by others, which would inevitably both develop and fuel a perception unfavourable to the doctor. In an area where it is easy for actions to be misinterpreted, special care may need to be taken to ensure that the evidence of the patient concerned as to what occurred is uninfluenced.

Abuse of Process

33. In R (Redgrave) v Commissioner of Police for the Metropolis the issue was whether it was abusive for the Defendant to bring disciplinary proceedings against a detective constable following his discharge by a magistrates' court at committal proceedings in respect of the offence in question. Simon Brown LJ (with the entirety of whose judgment Mummery and Scott Baker LJJ. agreed) noted that discharge at committal proceedings could not found a successful plea of autrefois aquit, but then went on to discuss whether there was any parity between criminal and disciplinary proceedings such as to bring the rule into play in the event of an actual acquittal after trial. He held first that the purpose of such proceedings was different (relying on Ziderman v General Dental Council [1976] 1 WLR 330 (P.C.) per Lord Diplock, where he said at p 333:

"The purpose of disciplinary proceedings against a dentist who has been convicted of a criminal offence by a court of law is not to punish him a second time for the same offence but to protect the public who may come to him as patients and to maintain the high standards and good reputation of an honourable profession"

34. Second, he held that a disciplinary tribunal was not a court of competent jurisdiction for the purposes of the operation of the rule (relying on observations to that effect by Lord Lane in R v Statutory Committee of Pharmaceutical Society of Great Britain, Ex p Pharmaceutical Society of Great Britain [1981] 1 WLR 886, and Popplewell J. in Saeed v Inner London Education Authority [1985] ICR 637), and third, that to the extent that it did not operate to the same standard of proof it was distinct for that reason too (adopting further words of Popplewell J. from the Saeed case, who had in turn adopted the approach of Friedland in "Double Jeopardy" (1969) at p.319).
35. As to this last point, Simon Brown LJ commented (at para.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 the Ziderman case: see paragraph 33 above. 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"

36. He added (at para.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".

That intention, albeit to that limited extent, has now had its fruition in statute as Simon Brown LJ foresaw: the point thus holds even more weight now than it did in January 2003.

37. None of this might be thought helpful to the appellant's case that it was unfair of the FTPP to have entertained the charges alleging sexual motivation: since the double jeopardy rule is calculated to provide the principle by which fairness is ensured where claims that are rejected by one tribunal are reiterated before different decision makers, anything falling short of the application of that rule would not (without more) fall be ruled unfair. However, at the conclusion of his judgment Simon Brown LJ said this (at para.46):

" I would end this judgment by commending to disciplinary boards generally two particular paragraphs included in the 1999 Home Office Guidance on Police Unsatisfactory Performance, Complaints and Misconduct Procedures:

"3.70 In deciding matters of fact the burden of proof lies with the presenting officer, and the tribunal must apply the standard of proof required in civil cases, that is, the balance of probabilities. The straightforward legal definition of the civil standard of proof is that the adjudicator is convinced by the evidence that it is more likely or probable that something occurred than that it did not occur. Relevant case law makes it clear that the degree of proof required increases with the gravity of what is alleged and its potential consequences. It therefore follows that, where an allegation is likely to ruin an officer's reputation, deprive them of their livelihood or seriously damage their career prospects, a tribunal should be satisfied to a high degree of probability that what is alleged has been proved.

3.31 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"

38. R (Phillips) v General Medical Council [2004] EWHC 1858 and Sacha v General Medical Council [2009] EWHC 302 were held out as cases in which this guidance had been approved by the court in the context of proceedings before the GMC. In the former, a doctor was acquitted of eight counts of indecent assault against patients. The crown court judge had required the prosecution to put forward their "best" ten cases, of which 8 were eventually heard, although 32 patients sought to make similar allegations against him. The doctor sought judicial review of the decision to refer the 24 "non-acquittal" cases for hearing before an FTPP. This was refused by Newman J., who gave his reasons at paragraphs. 36 – 38:

"In my judgment where the application relates to an independent tribunal as here, established by rules, governed by its own procedures, and having a specialised expertise to bring to play within its jurisdiction, the responsibility for deciding whether its procedures have been abused should, unless weighty circumstances point to another conclusion, be decided by it. That is but to give proper recognition to the integrity and independence of the tribunal exercising its jurisdiction over its own affairs.

37. There is no rule of law which prevents a disciplinary tribunal, such as the PCC of the General Medical Council, from investigating conduct which has been the subject matter of a trial and which has resulted in the acquittal at trial of, for example, a doctor of a criminal offence. There is no dispute as to that. [Counsel for the doctor] loyally accepts that to flow from the case of R (Redgrave) v Commissioner of the Metropolis [2003] 1 WLR 1136. There is general guidance given by Simon Brown LJ in paragraph 46 of his judgment, all of which of course is in point, and there are earlier observations disclosing his reasons for concluding that what is sometimes called the double jeopardy rule has no application as such a strict rule.

38. In my judgment it is essential to remember in this case, so that the eye is kept on the mark, that what is at issue in these matters is the professional standards of conduct of a medical practitioner. It is obvious that it is pre-eminently for the professional body to determine whether the evidence relevant to the discharge of professional standards reaches its required standard of proof in a case where there has been criminal prosecution which has failed, for it to consider whether the allegations of professional misconduct are, for example, capable of being freestanding from any determination in the court, and for the professional standards committee to pay regard to the direction given by Simon Brown LJ in paragraph 46 of the judgment in Redgrave."

39. Newman J. then turned to consider five cases in which there had been acquittals, and whether the FTPP could without abusive unfairness consider those. He concluded (at para.71) that:

"so far as the five acquittal cases are concerned there should be no restraint upon them going before the Professional Conduct Committee; but there may well be discrete arguments in connection with the abuse application, not only from, obviously, the fact that they are the acquittal cases, but also from the procedural process which has been adopted which, to say the least, has some gaps, and maybe the view will be taken the circumstances call for some explanation in greater detail than has been provided to this court."

40. He plainly did not regard the guidance expressed by the Court of Appeal in Redgrave as necessarily making it an abuse for the FTPP to hear the charges. At best for Mr.Coker's arguments (the reasoning adopted in respect of the 24 non-acquittal cases being of disadvantage to his submissions) he envisaged that it would be open to the doctor to seek to persuade the panel that to hear those five charges would be an abuse.
41. In Sacha, Lloyd-Jones J. considered the case of a doctor who had been found guilty by the FTPP of making sexual advances to a receptionist at the general practice at which he worked, who was also a patient, and of being sexually motivated when conducting an examination of another patient's breasts. The doctor had been tried, and acquitted, of an offence relating to this patient, in which it had been alleged that when he had examined her vagina he was sexually motivated. However, evidence that he had touched her breasts, with what was suggested to be a similar motivation, was admitted at the trial as part of the course of conduct within which the incident referred to in the count took place. An application had been made (as here) to stay proceedings before the FTPP for abuse, and had failed.
42. Reliance was placed before me on paragraphs 40 and 43 in particular of the judgment of Lloyd-Jones J. In the former, he observed that:

"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."

It is not clear to me that he intended these words as recognising a general principle that acquittal of one charge made it unfair of a professional body to prosecute the same allegations in a disciplinary hearing. If he had done so, it would have been contrary to that which he had set out earlier in his judgment, where he had eschewed any such principle and regarded abuse as dependent on the particular circumstances of a case (see paragraph 17 of his judgment). I take it, therefore, that these words are limited to a fact-specific analysis of the case before him.

43. In the latter paragraph, he did expound a general principle, but in these terms:

"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".

Save that he resisted widening the scope of abuse to regard it as unfair to discipline a doctor on charges of which the doctor could have been acquitted, though he never was, because he was never tried for them, this principle is of no assistance in the case I have to determine.

44. It should be noted that at the time the case was heard, the GMC required allegations against a doctor to be proved beyond reasonable doubt. The standard applicable to the present case is that of the balance of probabilities.
45. The Panel heard submissions from Mr. Coker QC, Ms Goddard QC for the prosecution, and from their Legal Assessor as to this law. In summary, Ms. Goddard submitted that:

i) The double jeopardy rule has no application to disciplinary proceedings;

ii) The guidance in paragraph 46 of Redgrave was incidental to the case (i.e. obiter);

iii) In any event, that guidance was based expressly on there being a sliding scale of standard of proof, a view which is now discredited: see Re D (Secretary of State for Northern Ireland intervening) [2008] UKHL 33; Secretary of State for the Home Department v Rehman [2003] 1 AC 153, per Lord Hoffmann at 55; R(N) v Mental Health Review Tribunal (Northern Region) [2006] QB 468, per Richards LJ at 68;

iv) The guidance has been superseded by guidance which does not now suggest that it is likely to be unfair for a police officer to face disciplinary proceedings having been acquitted of criminal charges in respect of the same events;

v) An acquittal is not conclusive evidence of innocence nor did it mean that all relevant issues had been resolved in favour of the defendant at the trial

vi) The Panel had a duty to act fairly, which involved consideration of Dr.Bhatt's acquittal at his criminal trial, but also must be weighed alongside the GMC's duty under s.1 (1A) Medical Act.

46. The Legal Assessor submitted (rightly reflecting authority, in my view) that a stay for abuse of process is an exceptional course, and the burden was on the applicant to persuade the Panel to grant one. It should be granted either where a doctor cannot receive a fair hearing, or where it would be unfair for the doctor to have to face a hearing. He added:

i) in relation to the first head, a stay should only be granted if the problems identified could not properly be dealt with during the course of the hearing;

ii) in relation to the second, the Panel should take into account all the circumstances of the case, and balance such matters as hardship to the doctor in facing distressing allegations for a second time with the public interest in the hearing of serious questions about his conduct which, if found proved, would be likely to demonstrate unfitness to practise. The weight of each was for the panel.

47. The Panel deliberated, and expressed its conclusions in a carefully worded and coherent document which set out the arguments (the essentials of which I have recorded above) and advice of their Legal Assessor. It rejected Mr.Coker QC's submissions. It held that "The Home Office guidance, as commended in [Redgrave] does not represent the present law", observing that it misinterpreted the civil standard of proof and its application, and that there was a difference in practical application of the two standards. It did not therefore think it unfair so as to make it abusive that Dr.Bhatt should be required to face a hearing. It recognised that Dr.Bhatt and his family would face considerable stress if he were to face the allegations again, but that was an insufficient reason not to proceed when balanced with the duty of the GMC to protect, promote and maintain the health and safety of the public, and its duty to make due inquiry, citing Bolton v Law Society [1994] 1 WLR per Bingham MR who stated that:

"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".

The purpose of the proceedings served a different aim from that served by criminal prosecution.

48. Nor did it think that the hearing Dr. Bhatt would have would be unfair: he was able to test the possibilities of contamination of evidence before the Panel within its own proceedings, quoting an observation of Irwin J. in Sinha v GMC [2008] EWHC 1732 Admin in a case in which he had considered that allegations of contamination could be addressed on the evidence by the Panel, saying that:

"Collusion and contamination are the stuff of life in the criminal courts, where sexual allegations are concerned. It cannot be an objection to proceeding in a case that such questions are raised, even when there may be imperfect documentary evidence against which to test the validity of the allegation."

49. In conclusion, the Panel was not persuaded that there could not be a fair hearing.
50. Mr.Coker QC submitted that there was no good reason to depart from the guidance in Redgrave, which remained good law: the change in the burden of proof made no practical difference in most cases. He relied on his criticisms of D C Froggett, to which I shall come later in this judgment.e

Discussion: Abuse

51. A stay for abuse is, as the Assessor submitted, an exceptional course. It should, as the Assessor submitted, be granted either where a doctor cannot receive a fair hearing, or where it would be unfair for the doctor to have to face a hearing.
52. Redgrave is concerned with the latter. However, it is guidance, and even if still currently applicable falls short of obliging a disciplinary panel to regard it as abusive for matters upon which a professional has been acquitted in the criminal court to be revisited in the course of professional regulation. If this was inherently abusive, the double jeopardy rule would apply, and the ratio of Redgrave is that it does not.
53. All the more does it not constitute an abuse, given that the purpose of disciplinary proceedings (regulation to maintain proper standards in the profession in the best interest of the public and the profession) is different from that served by the criminal courts; that the standard of proof is significantly different, such that there is no inconsistency between acquittal by a jury and a finding by a disciplinary panel that allegations are proved (as there might often have been at a time when the standard was the same); that evidence admissible before a disciplinary tribunal may differ in that different rules of evidence are likely to apply, and in part because judicial discretions may well be differently exercised—as Simon Brown LJ said, generally less strictly in the disciplinary context where at least the accused's liberty is not at stake.
54. A decision of a professional body is entitled to great respect, as Newman J. observed – I accept both his reasoning and conclusion when he said in Phillips that a decision by such a body as to whether proceedings before it would be abusive or not should not be upset unless weighty circumstances point to another conclusion. Here, the Panel was careful in its determination to take into account the prejudice that would inevitably be caused to Dr.Bhatt – and his family – in facing his accusers again. I cannot say that the balance it struck between that and the duties of the GMC to which it referred was wrongly drawn. If its decision were to be reviewed applying public law tests, there would be no reason to think it flawed. I can see no weighty circumstance which pulls in the other direction, so as to persuade me when applying the approach set out at paragraphs 4 – 9 above that the decision was wrong, or unjust.
55. I am equally satisfied that the alternative basis on which an application for a stay for abuse of process might succeed – that there could be no fair hearing – was not made out. The Panel were made fully aware of the potential problems of contamination of evidence, could not have been unaware of the effects on witnesses of repeating testimony, and fully in a position to evaluate the evidence of DC Froggett. To the extent that it could be said witnesses' testimonies were inconsistent, this could be drawn fully to their attention – and in agreement with Irwin J. I would regard it as remarkable if the mere suggestion of collaboration between witnesses, or inconsistency of testimony, prevented a court from hearing and evaluating that evidence at all. It was right to conclude that the processes within the FTPP were capable of ensuring that Dr. Bhatt had a fair hearing. No inherent bias is apparent.
56. It is unnecessary in drawing these conclusions to express any decided view as to the current status of what was said at paragraph 46 of Redgrave. That was obiter, was guidance, and certainly was not binding. The FTPP had regard to it, not least because it was asked to do so. The guidance itself was based upon a view by its author that the standard of proof slid upward as the charges became more serious: on such an approach, there arguably would be not as a much as a cigarette paper between the applicable standard and that adopted in a criminal trial where what were in issue were matters amounting to criminal conduct, generally recognised as such. It is not difficult to see how to have a second trial would risk a potential inconsistency of verdict upon essentially the same evidence whilst adopting effectively the same standard, or as near may be, and this argues that it might be abusive to have a second trial in the particular circumstances of a given case, especially if nothing further was relied on factually before the disciplinary tribunal. Though I think there is significant force in Mr.Coker QC's point that, once the improbability of a doctor sexually interfering with his patients for his own gratification is taken into account in assessing where the balance of probabilities falls, there may be little in practical terms between the evidence required to prove one or the other, the guidance is nonetheless written on a basis that no longer strictly applies. Though as I have indicated, it is unnecessary to come to a concluded view on it, I see the force of the Panel's view that it no longer represents the law.

Admissibility of the Complainant's Evidence

57. Section 107 of the Criminal justice Act 2003 ("Stopping the case where evidence contaminated") provides:

"107 (1) If on a defendant's trial before a judge and jury for an offence —

(a) evidence of his bad character has been admitted under any of paragraphs (c) to (g) of section 101(1), and

(b) the court is satisfied at any time after the close of the case for the prosecution that—

(i) the evidence is contaminated, and

(ii) the contamination is such that, considering the importance of the evidence to the case against the defendant, his conviction of the offence would be unsafe,

the court must either direct the jury to acquit the defendant of the offence or, if it considers that there ought to be a retrial, discharge the jury.

………….

(5) For the purposes of this section a person's evidence is contaminated where—

(a) as a result of an agreement or understanding between the person and one or more others, or

(b) as a result of the person being aware of anything alleged by one or more others whose evidence may be, or has been, given in the proceedings,

the evidence is false or misleading in any respect, or is different from what it would otherwise have been."

58. The section is applicable only to criminal trials before a jury, and then only in respect of evidence of bad character as defined in that Act. It is thus not obviously applicable to disciplinary hearings. Notwithstanding that, Mr. Coker QC submitted it demonstrated a legislative policy which recognised the extreme dangers of reliance on contaminated evidence, and provided a handy definition of the latter.
59. Section 78 of the Police and Criminal Evidence Act 1984 provides that:

"(1) In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it."

60. Although this begins with the words "In any proceedings…", it comes in a part of the Act which is expressly headed "Evidence in Criminal Proceedings – General", and that and the references within the subsection to "court" make it plain that it applies to any proceedings before a criminal court. It therefore is not expressly applicable to disciplinary proceedings. Nonetheless, the FTPP approached the question of admissibility of evidence as though it were.
61. Mr. Coker QC submitted that there had been unmistakable and wholesale breaches of the Code of Practice to the Criminal Procedure and Investigations Act 1996, and of the Attorney General's guidelines on disclosure (especially paragraphs. 23 and 24), which justified the application of s.78 to the proceedings before the FTPP. It rendered admission of the evidence of the complainants unfair.
62. The Code obliged the officer in charge of an investigation (here, DC Froggett) to ensure there were proper procedures in place for recording information, and retaining records of it, including information obtained at interview. There is an obligation (para.4) to record information in a durable or retrievable form; to record it at the time it is obtained or so soon after that as is practicable, to retain it, and to disclose any information which might cast doubt on the reliability of a prosecution witness (Paras 4,5,7). Yet what had happened here was that patients B, C, D, E and F had each been visited by DC Froggett, and C, D, E and F described interviews of length, substance and detail conducted by him of them. In the cases of C, E and F he had made them aware of the existence of other complaints (D already knew). Yet he made no notes of these interviews.
63. At the criminal trial it was formally admitted by the crown that DC Froggett had been asked by Mrs.Wilson (CPS, and junior advocate) to disclose full details of all police contact with the patients, and in particular contact leading up to the video recorded interviews, and that he had revealed the fact that he had been in contact with the patients prior to their giving video recorded interviews, and in the cases of C, E and F had made them aware of the existence of other complaints. But he did not reveal that he had asked for and received accounts of the consultations save that he had told Mrs. Wilson that when he saw patient C she had outlined her allegations to him.
64. Although in the criminal trial, DC Froggett accepted this admission was accurate, before the FTPP he said it was untrue, alleging that he had been "hung out to dry", since he had told the reviewing lawyer about the accounts he had taken from the patients before they were video interviewed. He said he could point to internal memoranda which would prove that he had done so. He was challenged to produce them. When he did so, they showed the opposite. Moreover, these memoranda showed that contrary to his sworn evidence at trial (that he had not seen a defence request for complete disclosure of ALL police contact with ALL complainants) he had in fact received it.
65. In the light of the serious, and extensive criticisms of DC Froggett (Mr. Coker QC alleged his evidence was "wholly unsatisfactory", and "if not acting in bad faith, he was incompetent") I reviewed the entirety of his oral evidence to the FTPP. Sad to say, this was with increasing dismay. It is very difficult to get the full flavour of a witness from the printed page. It says nothing about inflection, manner, emphasis, pace, accompanying body language, and overall impression. However, it seemed clear from the transcripts that DC Froggett was frequently obstructive in his answers to questions, he often did not engage with the question at all, and on one occasion – when for good reason a theme was repeated to him, so that he might deign to answer - complained the questioning was becoming monotonous. His answers appeared to obfuscate rather than illuminate. He insisted that the guidelines were not obligatory – despite their express wording in relevant respects which showed the contrary, in those respects. He played down the significance of obligations and approaches such as those in the Code and in Achieving Best Evidence, almost to the point of suggesting they could be ignored. He often referred to himself, somewhat bizarrely, in the third person. He gave no good reason for his failure to make a note of the interviews (it was his normal practice not to do so, despite his evidence being that the purpose in having such an interview was that very often he might get "vibes" – if he did, they were simply not recorded for others to assess or appreciate). He seemed to think that there was no particular reason why telling the patients that there were other complaints about Dr. Bhatt would lead them to think that those were complaints of a sexual nature, when this was wholly unrealistic – and potentially dangerous, since a patient's uncertainty about whether she had experienced an appropriate medical examination, or an inappropriate sexual interference might be resolved such that the patient became convinced of the latter simply because of the knowledge there had been other such complaints. Much of his evidence might appear from the printed page to have been intended to frustrate, rather than assist, the cross-examiner.
66. It also seems plain to me from reading the transcripts that the members of the Panel were not impressed by many of his answers, or by his manner of answering. They asked questions which appear to have been critical of him, or of what he was saying.
67. In summary, there can be little doubt that his evidence was, at the least, unsatisfactory. Nor did Ms Callaghan, who appeared for the GMC, seek to argue the contrary.
68. Further, it did not fit with the evidence of DC Britland, or DI Jackson, the effect of whose evidence was to accentuate the departures from proper procedure of which DC Froggett was culpable.

Discussion: Admissibility

69. The fact that a witness gives unsatisfactory testimony does not mean that it should not have been admitted into evidence in the first place. It is often the case in many trials. Nor does it mean that it should be excluded from consideration once it is appreciated it is unsatisfactory. The question is whether it is fair to the person whose conduct is under scrutiny at the hearing to consider that evidence, giving it such limited weight as unsatisfactory evidence may have, or fair only to exclude it altogether. Part of the assessment of fairness is whether the determining panel is aware of the potential defects in the evidence, and in a position reasonably to assess and evaluate them. As Irwin J. has said, allegations of collusion and contamination are part of the stuff of every day life in the criminal courts – what matters is whether those who have to make a decision on the evidence are properly placed to do it fairly.
70. Here, it is clear to me that the members of the Panel were made well aware of the several deficiencies of D.C. Froggett's evidence, and (from my reading of their interventions from time to time during his testimony) were less than impressed with it. The process adopted allowed Mr. Coker Q.C. to question, and to comment, and could not in my view be said to be unfair to Dr.Bhatt.
71. However, the evidence of D.C.Froggett cannot be seen in isolation. The point here is whether in the light of his evidence that he had spoken to each of the complainants bar one in advance of their video interviews, those interviews, and the witnesses' testimonies, might have been corrupted so that their accounts should not be received in evidence. Where, for instance, in a criminal trial it becomes apparent that an officer occupying a central role in the investigation cannot be relied on, evidence which depends on his reliability may be excluded and, in many cases, the prosecution aborted because a jury may not safely be asked to rely upon the prosecution evidence as a whole.
72. I am asked to conclude that the breaches of the Code and Attorney-General's Guidelines are substantial (reference being made to R v Keenan [1990] 2 Cr App R 1) and that the motive for breaking the rules is relevant (R v Delaney 88 Cr.App.R. 338, at 341), and to pay regard to R v Quinn [1990] Crim L.R. 581 for the proposition that proceedings may become unfair if one side cannot properly challenge the evidence of the other. However, all must necessarily depend upon the particular facts of any given case, as the report of Quinn makes clear – there, the evidence was held not unfairly admitted, despite potential difficulties arising from the failure to hold an identification parade compliant with proper standards, a decision reached by taking into account all the relevant factual features of the case.
73. Here, I must ask whether the evidence of the patients might have been hostile to Dr.Bhatt not because of what he did (when he examined them inappropriately, as the Panel found) but because of what D.C.Froggett had said (that there were other complaints, a matter that might have coloured their perception) and what he did not report (their initial doubts or inconsistencies, as spoken to him but never written down as they should have been), and that the doctor was in a position where he could not adequately meet that evidence because he was deprived of a note of their earliest complaints. Mr Coker would argue that the FTPP were not in a position fairly to evaluate that because they did not have any reliable record of what those witnesses had first said about their experiences at the surgery, when they were spoken to by D C Froggett but what they said was not recorded by him.
74. In my view, the evidence was properly admitted. There were sufficient safeguards in the process adopted by the Panel. The risks of contamination and corruption of the patients' evidence could be safely assessed by the FTPP, such that its conclusion would be valid. Critical to this conclusion of mine is the fact that (with the exception of Patient D) each of the four patients whose complaints of sexual motivation were upheld - C, E, and F – had first complained to others than D C Froggett, without being inspired to do so by the actions of anyone else. Each plainly felt that something amiss had occurred (otherwise there would have been no basis for a complaint). The evidence they gave may, with the exception of F, have been given in the first place to D.C.Froggett before it was recorded on video – but it was recorded on video in each case at length, at an early stage, and each patient was available at the hearing to verify that account (and did so), and could explain what contact they had had with the officer and how it might have influenced them. This was not a case of witnesses who were suborned into accusing the doctor: each had volunteered to do so, and the credibility and accuracy of their respective accounts could be evaluated by the Panel. Some discrepancies between accounts were apparent (eg between the account of C, as reported by Tracey Houghton, and as given by her). It was speculation to think that other discrepancies might have been hidden by the conduct of D.C.Froggett, but each patient could be questioned fully about contact with him, and their evidence be evaluated critically by a Panel which was well aware of the breaches of the Code for which the officer was responsible and their potential effect. D.C. Froggett had only limited opportunity to affect the substance of the patients' evidence. It was proper for the panel to admit the evidence of the patients. Having done so, the Panel had to evaluate that evidence. The evidence of DC Froggett would be part of that evaluation: it had a secondary bearing only on the facts in issue, and on its own provided no basis for any finding for or against the doctor. Despite the criticisms, the procedures adopted by the Panel were in my judgment sufficient in this case to enable it to decide the case fairly.
75. The judge in the criminal case did not call a halt to proceedings on the basis that DC Froggett's evidence rendered it unfair to proceed, or to admit the evidence of the patients. He left the issues in the case to the jury. Similarly, the decision by the FTPP panel was to reject the application that the evidence of the patients be treated as inadmissible. Both judge and Panel were in a position better to evaluate the evidence of DC Froggett: they saw and heard him, and were in a better position to judge than I am for the reasons I mention at the start of paragraph 65 above. Although I have been careful not to accord the views of the Panel the degree of deference to which they might be entitled if the matter at issue had been one of professional judgment and not a question of trial process, they are entitled nonetheless to some respect in this case, and the trial judge all the more (even if he did not have the added advantage of hearing DC Froggett turn turtle over some of the evidence he had given on oath before the criminal court).
76. In ruling on admissibility, the Panel had its eyes fully opened to the disadvantage that Dr.Bhatt's case might suffer. It considered carefully the circumstances in which each patient had come forward. It did not consider the breaches were significant or substantial in respect of C. It acquitted DC Froggett of deliberate unfairness or an intent to conceal evidence from the Panel or court. It took into account the conversations which gave rise to the videoed complaints, and (approaching the issue as if s.78 of the Police and Criminal Evidence Act 1984 applied) concluded that admitting the evidence would not have such an adverse effect on the fairness of the proceedings that it ought not to be admitted. It gave reasons in respect of each complainant, separately analysed. I am not persuaded these conclusions were obviously wrong.
77. In conclusion, therefore, although I accept that significant criticism of the evidence of DC Froggett appears fully justified, and that many of his answers before the FTPP seemed calculated to frustrate the questioner on behalf of Dr. Bhatt, the evidence of the patients was admissible, and the Panel was not wrong to regard it as such.

Submission that Findings were Unsupported by Evidence

78. Mr. Coker QC repeated much of his submission about the quality of DC Froggett's evidence, the shortcomings and breaches involved in his investigation and the recording of that, in arguing that the FTPP failed to have sufficient regard to the prejudice caused by the conduct of the police investigation upon the resolution of the central issue, whether the appellant's motives were sexual or medical.
79. He urged that any finding of sexual motivation based upon the evidence of C was unsafe: she had not told Tracey Houghton that Dr.Bhatt had unzipped her top and fondled her breast, but rather that she had unbuttoned herself for him to examine.
80. As to this, the Panel concluded that the report by Ms Houghton was written an hour after the complaint, and did not properly justify the inference that C had been inconsistent. It was a report made second-hand, and when C gave evidence (and was cross-examined about this) she remained broadly consistent.
81. Further, the Panel heard from Dr.Bhatt himself. It is plain the panel thought little of his credibility, for reasons it gave in some detail. In respect of Patient C, he suggested that she might have misunderstood his actions in that he might accidentally have knocked her breast out of its bra cup. This explanation was plainly (and properly) regarded as risible – and it does not rescue the point to argue as did Mr.Coker QC that this should merely be regarded as an attempt to explain how it might have happened during a consultation the details of which he simply did not recall.
82. As to D, it was argued that her evidence had been inconsistent with her father's recollection of her early complaints, what she had said to WPC Jervis, and to DC Froggett (if the incident log were correct) before her videoed interview.
83. The Panel in its decision noted that recollections may evolve throughout an investigation and subsequent proceedings, dealt with the inconsistencies, and concluded that the telephone operator's note of D's father's summary of what D had told him was brief, and provided only weak evidence that there may have been contamination, In its conclusions, it dealt centrally with the potential inconsistencies, accepted there had been elaboration in matters of detail, but regarded the evidence as given by her as consistent. Its analysis was careful, alert to the dangers, and reached a conclusion to which it could properly come. I see no reason to depart from it.
84. As to E, Mr.Coker QC suggested she had not made any complaint to her family that Dr.Bhatt had behaved in a sexually motivated manner. When she had reported her concerns to the PCT she had expressed the view that she was unsure that she had anything to report. It was only after DCs Froggett and Britland had interviewed her that she made unequivocal allegations. He complained that whereas the Panel had rejected the account of A, where there was a recorded initial complaint at variance with her later testimony, it was prepared to accept the account of E notwithstanding that she made allegations as to such as groping, grabbing and squeezing of her breasts which it did not appear she had made initially.
85. The Panel did not accept that she had given inconsistent accounts. Rather, her original account was the same, but developed in greater detail. This was entirely to be expected. It noted that she had already given her account to the PCT by the time that she was made aware of other complaints by DC Froggett (a matter which she herself did not recall).
86. As to F, Mr.Coker QC argued she had not initially described the assault as a sexual assault. There was a medical (though ill-conceived) reason for examining the nipple. Her account of the consultation seemed inherently unlikely to have occurred. Her video interview demonstrated that she had, through a process of leading questions, come to say that she had been frightened to look down, as he examined her during the consultation, in case she might see that he had an erection.
87. The Panel rejected the idea that because "sexual assault" were not words which F used to describe the incident this was inconsistent: it was not a common lay expression (I note here the panel had the opportunity to assess F as she gave evidence). It accepted that she had been inconsistent with regard to whether before the examination Dr. Bhatt had told her that by examining her breasts he could tell whether she was pregnant or not, or whether he simply told her she was not, or neither, and as to whether she had asked Dr. Bhatt what he was doing. Dr. Bhatt told the Panel that he might have flicked her nipple once, accidentally. He was unclear whether he gave an explanation to her or not as to what he was doing. He accepted that he might have pinched her breast (he said, possibly when feeling for the tubercles of Montgomery). Taking all that into account, it accepted that Dr.Bhatt had flicked the nipple a number of times as she had alleged, and had reported to her boyfriend immediately afterwards. A remembered reluctance to look down, towards the doctor's trousers, for fear that doing so and seeing an erection might demonstrate unequivocally that which the patient hoped might not be happening, has a ring of reality about it. Far from rendering the testimony unconvincing it tends to the opposite.

Discussion : Sufficiency of Evidence

88. This ground overlaps considerably with that of admissibility. It is to the effect that if admitted, the evidence taken as a whole – including that of Dr. Bhatt – was not a sufficient basis upon which to conclude that touching which might have been clinically inspired was in fact sexually motivated. However, what took place gave each patient independently a cause for concern. The description given by each was capable, if there were no explanation from Dr. Bhatt, of carrying the inference that it was sexually motivated. It was the concern that it might have been inappropriate which must have caused each patient to make a complaint to someone almost immediately, and in the cases of C, E and F to do so to those in positions of responsibility (the practice, the PCT, the police). The accounts which it was shown each gave for themselves were (save in the case of F) consistent, though the detail they recounted had understandably developed over time. The Panel, once it admitted the evidence of each patient, could no more have acceded to a submission that there was no case to answer than could a court applying Galbraith principles. When Dr.Bhatt gave an explanation, it was found significantly wanting and unconvincing. The Panel came to carefully reasoned decisions in each case, viewed individually (it said). I cannot say it was wrong to do so: and all the less could I conclude that that is so if the Panel was entitled to regard the evidence of one patient as cross-admissible in the case of another, a point to which I now turn.

Cross-Admissibility

89. The appellant argues that the approach of the Panel to cross-admissibility was irrational: it said it did not reject the GMC's submissions that evidence could properly be cross-admitted, but had not found it necessary to rely on similarities between the incidents.
90. In Mr.Coker QC's skeleton argument, he puts his argument this way:

"To have considered and rejected the respondent's submissions that the patients' evidence was cross-admissible and then to have ignored that evidence when considering the allegations in isolation would have been beyond the most rigorously disciplined tribunal of fact. If the evidence was cross-admissible why ignore it? The Panel ought to have rejected the application because contamination could not have been excluded. Accordingly the Panel may well have been wrongly influenced in deciding the evidence of one patient by the evidence of others."

91. The Panel (at page 11 of its determination on Admissibility of Evidence, Sufficiency and Mutual Support) found that three aspects of the evidence were capable of providing mutual support for the accounts of the other patients – that Dr.Bhatt had (in cases A,C,D,E,F) put his hand inside their bras and touched their breasts; that C and F said he had lifted a breast out of their bras; and A, D, F gave clear evidence that he had touched their nipples or the area around them (my emphasis). In its conclusions (page 13) it acknowledged the argument that these accounts afforded mutual logical support to each other in those particular respects, but did not find it necessary to rely on similarities between the different incidents.
92. If the Panel had, as it said, paid no regard to the cross admissibility of evidence, is its conclusion sustainable? The answer must be that it is. It rejected the evidence in the case of A that her examination had been sexually motivated, so was plainly both capable of distinguishing between one patient and another on an individual basis and did so. As to C, it was not suggested by Dr. Bhatt that a breast examination was indicated (the presenting complaint was of a swollen finger); and his evidence that he had knocked her breast out of its retaining bra by accident was risible. In the light of those matters, coupled with a preference for the apparent credibility of C over that of Dr. Bhatt, there was a proper basis for the Panel to conclude as it did without relying on cross admissibility. As to D, again there was a conflict of evidence as to what physically had occurred: the Panel was entitled to prefer the evidence of D, and given that it accepted that Dr. Bhatt had rubbed dry skin off the nipple of D's breast whilst she had her bra on, entitled to conclude that his actions had been sexually motivated. As to E, it was not in dispute that she had had a breast examination. The Panel concluded that she did not raise any concerns about her breasts so as to warrant an examination of them, and having concluded as it was entitled to do that he had watched her dress, and then put his hand inside her clothing, inside her bra, to touch her breasts, it is not at all surprising that it concluded that sexual motivation was made out. As to F, once it was accepted that the Doctor might have flicked the nipple and nipped the breast, as she alleged, it was common ground that he had undertaken actions which were clinically unnecessary. Lifting her breast by himself (rather than asking her to do it) was not appropriate, and the Panel was entitled to conclude that had happened. Further, the circumstances in which the breast came to be felt by the doctor – to demonstrate to the patient that indeed she was not pregnant as she had hoped – were not obviously those which might be expected to give rise to a manipulation of the breast by the doctor.
93. Some support would in my view also be available from the fact that in most cases the Panel also found that there had been a failure to explain what he, the doctor, was about, and a failure to record findings as one would have expected if the examination had been conducted for a diagnostic or clinical purpose.
94. In short, therefore, I cannot accept that the evidence was insufficient, looking at each case on its own, to justify the findings of the Panel, and I find nothing in its conclusions which suggests that it needed to rely on cross-admissibility to find the sexual allegations proved.
95. However, the poverty of this ground of appeal is demonstrated by considering what would have been the effect of cross-admissible evidence if it had been taken into account. Here, the italicised features set out in paragraph 91 above were rightly judged by the FTPP to be capable logically of providing the support of one case for another. They could do so in a criminal trial. They could do so here. If taken into account, then the findings of guilt receive further support, augmenting the credibility of the patients' accounts or diminishing the force of Dr.Bhatt's explanations, and adding to the probability of the factual findings as to motivation. I regard the findings of fact proper and requiring respect, even without cross-admission: all the more so, if there is.

Conclusions

96. Applying the approach which is set out at paragraphs 4 – 9 above, I hold that the decision of the Panel was neither wrong nor procedurally unjust. Although I would have been prepared to differ from the FTPP if there were good reason to do so, I can see none. The findings of primary fact made by that Panel in respect of each of patients C, D, E and F were reached on a solid basis, and were effectively unassailable once their evidence was admitted. Admitting it was not wrong. Nor was it procedurally unfair for the doctor to face disciplinary proceedings arising out the same allegations as those on which he was acquitted at the crown court.
97. The fifth ground – sentence – is expressly predicated upon the court concluding that the Panel were wrong to conclude as it did as to the issue of motivation. Accordingly, that falls away.
98. The appeal must therefore be, and is, dismissed.