QUEEN'S BENCH DIVISION
(To be handed down at Leeds Combined Court Centre)
B e f o r e :
| DR. PARAG BHATT
|- and -
|GENERAL MEDICAL COUNCIL
CATHERINE CALLAGHAN (instructed by GMC Legal) for the Respondent
Hearing dates: 1, 2 March 2011
Crown Copyright ©
Mr Justice Langstaff- :
The Court's Approach
"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  QB 462,  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  1 WLR 1460,  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."
"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  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)  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  AC 217 at 221F more recently confirmed in R(Campbell) v General Medical Council  1 WLR 3488 at  per Judge LJ). Finally, in Gupta v General Medical Council  1 WLR 1691, Lord Rodger put the matter in this way (at  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. ." "
"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  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". "
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
The Criminal Trial
The Findings of the Fitness to Practise Panel
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
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  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.
Submissions in Detail
Abuse of Process
"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"
"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"
"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.
" 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"
"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  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."
"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."
"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.
"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.
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)  UKHL 33; Secretary of State for the Home Department v Rehman  1 AC 153, per Lord Hoffmann at 55; R(N) v Mental Health Review Tribunal (Northern Region)  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.
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.
"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.
"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."
Admissibility of the Complainant's Evidence
"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."
"(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."
Submission that Findings were Unsupported by Evidence
Discussion : Sufficiency of Evidence
"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."