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Cite as: [2001] UKPC 39

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Privy Council Appeal No. 71 of 2000

Dr. Sebastian Anthony Borges Appellant v.

The General Medical Council Respondent

FROM

THE PROFESSIONAL CONDUCT COMMITTEE

OF THE GENERAL MEDICAL COUNCIL

REASONS FOR REPORT OF THE LORDS OF THE

JUDICIAL COMMITTEE OF THE PRIVY COUNCIL OF THE

12th July 2001, Delivered the 31st August 2001

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Present at the hearing:-

Lord Hoffmann

Lord Cooke of Thorndon

Sir Andrew Leggatt

[Delivered by Lord Cooke of Thorndon]

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This is an appeal under section 40 of the Medical Act 1983 from a decision of the Professional Conduct Committee (PCC) constituted under that Act finding that two charges had been proved against the present appellant and that in relation to the facts proved he had been guilty of serious professional misconduct. The Committee directed the erasure of his name from the register and also the suspension of his registration forthwith. Their decision was given on 27th October 2000. On 12th July 2001 their Lordships announced that they would humbly advise Her Majesty that the appeal ought to be dismissed and that they would give their reasons later, as they now do.

The two charges found proved were as follows:

"…

3.a. On an unknown date in 1996 you were consulted by Mrs 'C',

b. You gave Mrs 'C' an internal examination,

c. You touched Mrs 'C's' breasts in a manner that was

i. Inappropriate,

ii. Indecent;

4.a. On 7 August 1996 you were consulted by Mrs 'E',

b. During the course of the consultation you used a vaginal transducer,

c. You prepared the vaginal transducer for use in a sexually inappropriate manner,

d. You did not make any record of the consultation, …"

The appellant was a consultant obstetrician and gynaecologist at a hospital in north Scotland. He had been found not guilty at a criminal trial of each of four charges of indecent assault. There were also other disciplinary charges against him, which were disposed of in his favour, two of them at the same hearing as the charges now under consideration. All the foregoing charges related to incidents or alleged incidents distinct from the incidents concerning Mrs C and Mrs E. They are irrelevant to this appeal except to the extent that the argument for the appellant introduces them. It was not suggested to the PCC or to the Board that they gave rise to admissible similar fact evidence on the principle explained in Regina v Z [2000] 2 AC 483, which case was decided by the House of Lords on 22nd June 2000. Accordingly the Board would not have referred to them but for the argument advanced on behalf of the appellant. Because of that argument – and only for that reason – a brief account of the history of the charges is called for. Their Lordships are clear that the other accusations or allegations do not affect the reliability of the evidence of Mrs C and Mrs E. They are also satisfied that the understandable delay of Mrs C and Mrs E in bringing forward their complaints has not prejudiced the appellant.

History

On 4th March 1997 the appellant was suspended by the Hospital Trust following a complaint from a patient concerning an abdominal examination carried out on that day. Before long the Trust issued a press release about the suspension and also established a help line or hotline for patients to convey any concerns about treatment by him. He was tried in the sheriff court upon four charges of indecent assault. The trial took place from 19th to 26th February 1998, accompanied by much publicity and attention in the small local community. He was acquitted. Further complaints were received by the Trust subsequently, including those relating to Mrs C and Mrs E. Of the further complaints one was dropped, one was struck out by the PCC at the conclusion of the Council's case on the ground of insufficiency of evidence, and one was ultimately found by the PCC not proved. That left the two now in issue. Again because of the argument for the appellant, it is to be added that there was evidence of friction between the appellant and some of the midwives at the hospital, stemming from moves by him to increase their responsibilities. One of those whose allegations was not sustained was a midwife, another was her mother. Mrs E was also a midwife, but the evidence is that she was not involved in the friction. Mrs C had no connection with any of the midwives or with Mrs E.

Mrs C

This lady was aged about 74 at the relevant date. While giving evidence to the PCC she wore a hearing aid but still had difficulty in hearing. Not having her reading glasses with her, she also had difficulty with written material. She had a medical history including arthritis, carcinoma of the rectum, removal of a lump in a breast, and bladder problems. A pelvic floor repair had been performed by another surgeon in 1988. In November 1995 the appellant performed on her under general anaesthesia an operation of anterior repair for a cystocele: he described it as a routine repair. After that she went back to him twice for check-ups. On the second occasion, 30th August 1996 (the relevant date), he examined her vaginally to review the results of his first operation, as she was still having problems in that area, and he advised her that she would have to undergo another operation. This he carried out on 30th September 1996. It was not suggested that anything untoward occurred on the latter occasion. Mrs C's evidence was that she agreed to his undertaking the second operation, notwithstanding what had happened on the last examination, because she did not expect any repetition and the only alternative surgeon at the hospital was quietly spoken.

In her evidence Mrs C was very vague about dates, but her account of what happened when she went to the appellant for a second check up was graphic and in no way shaken in cross-examination. The appellant's examination of her took place in a small cubicle; no one else was present. She had to remove the bottom half of her clothing. After the vaginal examination was finished:

"He went behind me, and it is a very narrow bit, you know. He just stood behind me and I bent down to put my tights on. I put one leg into one tight, and as I bent down to put the other leg in, his two hands came round the back and grabbed my breasts, and there was something here, hot and soft, and I am a married woman." (In fact, as she said later, she was a widow, living alone.)

She continued that his hands had been under her blouse but over her brassiere; that he pulled her towards him; that she felt what she knew was a penis on her leg; and that she clenched her fists, brought her elbow back and punched him, and said "What is going on here". He just turned about and faced the wall, and went to work on his instruments or something. There was no conversation. She felt stunned, and was busy trying to get out of the place. She pulled up her skirt, buttoning but not zipping it, went to the toilet, sat down and thought "What has happened. I could not believe it". Then she got fully dressed and went home. She thought it was not much good saying anything. "I just thought that he is a surgeon and I am only Mrs C". At that stage she told nobody what had happened.

The appellant's evidence to the PCC was a vigorous denial of Mrs C's allegations. He accepted that an examination of Mrs C from the rear by manually taking hold of her breasts could not be considered a proper breast examination. It would be useless diagnostically. He maintained that there was no possibility of any form of innocent touching which had become confused within her mind. "She is an old lady who I treated with the utmost kindness because of her medical condition and her age, and I come from a culture that treats old people with respect. So that allegation is very hurtful". He could not remember whether there was a chaperone present on this occasion. He would have remembered if a patient had elbowed him in the stomach.

The first record of a complaint by Mrs C was made by Dr Johnson, who was her general practitioner. She consulted him about a routine clinical matter on 2nd March 1998. At the end of the consultation she said that there was something else she wanted to talk about. She then gave him an account basically similar to her evidence to the PCC:

"My back was towards him. I bent down to pull on my pants and tights. I had them half up when I felt his hands on my breasts and he pulled me up and back towards him. I do not know what he was hoping for at my age. I had no bust now. He felt very hot, as if his clothes were open. I didn't know. I didn't look. I swung my right elbow round and hit him with it. I pulled on my skirt and left. I went into the hospital toilet and finished dressing there."

Having taken the advice of his medical defence union, Dr Johnson told Mrs C by telephone that if she wished to make a complaint this should be done formally in writing to the hospital. Some three weeks later she came to him about another clinical matter but also bringing a letter which she asked him to send to the hospital for her. He did so.

That letter had been typed for Mrs C by her niece, who is a police sergeant. The niece said in evidence to the PCC that she had copied it from a handwritten version given her by Mrs C. Dated 22nd March 1998, it did not mention the "hot and soft" allegation. The niece said, however, that her aunt had mentioned this when first telling her about the incident, on an occasion at least a year before the letter. On that occasion she advised her aunt to tell the local police, but Mrs C felt that she would not be believed and was not well enough. She suffered a heart attack some time after the relevant date. After a considerable time Mrs C provided the written statement or notes from which the letter was typed. At this stage both of them had seen pieces in the newspaper about the doctor's suspension and trial. The niece's explanation of the absence from the typed letter of a reference to something warm and soft was that she only copied what her aunt had written down.

Vague though she was on dates and some other details outside the incident of 30th August 1996, Mrs C was resolute in cross-examination as to what happened on that occasion. She responded with some forceful answers. "The fact of the matter is that this just did not happen did it?" "It did happen. He knows it did". And later "Can I tell you something. Every time I saw Dr Borges after it, if I was in the hospital and he came across and spoke to me, he would say, 'How are you Janet?'. If I was in the supermarket he would come up and put his hand on my shoulder and say, 'How are you Janet?' How did he remember me so well? He is bound to see hundreds of people. How did he remember my name?" (The appellant would explain this as illustrating his extreme kindness.) "You simply made this up following what you read about the case, have you not?" "I may be old but I am not stupid. You can look".

The "hot and soft" allegation formed no part of the charge, nor did the chairman mention it when giving the grounds of the Committee's decision. It was not established by the high standard of proof required for allegations of this kind. But their Lordships are in no doubt that the essential complaint, concerning the breasts, was proved. On the record of evidence it carries conviction; and the PCC, who had the advantage of seeing and hearing the witnesses, also accepted it. To dismiss it as an invention would be to credit Mrs C with an Iago-like malevolence for the existence of which there is not the slightest basis in the evidence. To treat it as a figment of her imagination would be equally unreal. The appellant himself accepted that there was no room for misunderstanding. The very strangeness of her story tends to add to its veracity.

Mrs E

Mrs E was an experienced midwife. She had worked at this hospital since 1988 and with Dr Borges since he joined it the following year. She had also been treated by him as a patient on several occasions during her second pregnancy. On 7th August 1996 she was some ten weeks pregnant for the third time. She was very nauseated and feeling generally unwell. In evidence to the PCC she said that in the morning she rang the hospital to tell the ward sister that she was not going in that day. She was put through on the telephone to Dr Borges, who was to chair a meeting in the afternoon. He said that if she felt about making the effort, if she really wanted to go in, to make the effort. He told her to come at 2.00 pm. She arrived shortly before that time but the meeting did not start until 2.30 pm and when Dr Borges came to the conference room he and she sat and talked there for some 25 minutes. He was sympathetic about her nausea and offered to do a scan to check for any abnormalities or multiple pregnancies. She agreed. The meeting was over some time after 3.00 pm. After talking with someone else in the committee room Mrs E left, finding Dr Borges apparently waiting for her at the end of the corridor. He asked if she wanted him to do the scan. She again agreed. They went down to the ground floor, collecting the key for the scanning room in the x-ray department from the receptionist. To her surprise there was no one about in the department.

Her testimony continued that when they had entered the scanning room he told her to go and empty her bladder. This was unexpected by her, as she had been expecting a normal abdominal scan. He said that there was a new scanner. When she realised that a vaginal probe was involved, her face fell. He said "Just say if you do not trust me". She felt that she could not tell a colleague that she did not trust him. When she returned to the room, the lights were dimmed, as she had expected and as expert medical evidence called before the PCC accepted to be appropriate. She felt very uncomfortable, however, with only the two of them there and a procedure with which she was not familiar. The door was closed. She had to remove her clothing below the waist. The doctor was looking at her while she undressed.

She went on that she had to get on to the couch with her knees up and legs apart. He picked up the probe and in full view of her rolled a condom over it. He looked into her eyes but said nothing. He inserted the probe, then partially withdrew and reinserted it a few times. Still he was silent. To break the silence she said something to the effect of "Is there a problem; did you find anything?" He said everything was OK. He took the probe out. She quickly got dressed and left. When she reached home she told her husband what had happened. They discussed whether she would do anything about it. She did nothing at that stage: "I did not think anyone would believe me, and, to be honest, I could hardly believe it myself". Ultimately she did make a complaint after a midwifery colleague had come to her house very distressed, saying that a similar incident had happened to her. On checking her hospital notes she found that Dr Borges had made no record of her scan. When preparing the probe he was not looking at what he was doing but holding it with his left hand about the level of her tummy and, looking at her, placing the condom on with his right hand. The whole incident had made her feel cornered and that something untoward sexually was happening.

Mrs E's husband gave evidence that she had told him of the incident on returning from her work. She appeared to be shocked but not uncontrolled. She felt that the probe had been prepared in a suggestive manner and uncomfortable about how it was pushed in. In recounting what she told him her husband did not use the word "trust" but put it that Dr Borges said "If you are uncomfortable we will not continue" and that, feeling a bit intimidated and embarrassed, she went ahead and did the scan anyway. This of course is not corroborative evidence but it does show the essential consistency of Mrs E's account. It is also evidence that she gave that account well before the doctor's suspension and trial.

The evidence of Dr Borges was a combination of what he said was his usual practice and what he said he remembered of this particular occasion. While agreeing that he had spoken to Mrs E while waiting for the meeting to start and offering, he thought, a vaginal scan, he said that he did not remember speaking to her directly when she telephoned the ward sister. After the meeting, on the way back from his office he saw her in the corridor, he thought, and asked if she was still keen to have the scan done. He offered this as a favour to help a colleague. He did not remember saying "If you don't trust me". He may have said "If you are not comfortable with me doing it today, we can do it some other time". There was no reference that he could recall to a chaperone. He had no recollection of watching her while she undressed. He would have been looking at the machine, as the probe had to be connected. He prepared the probe in the way that he had hundreds of times before: holding it upright in his left hand about a foot away from his abdomen, squeezing gel on the top of the probe, and rolling a condom right down the probe, making sure that he expelled all the air bubbles. In cross-examination he said "You are suggesting it is an erect penis position; it just happens to be that way". He could not recall looking at her while he prepared the condom: it would have been difficult as it was necessary to concentrate on the probe and the screen; he may have looked at her face to see if she was comfortable. He would have explained to her why he was putting the condom on (presumably to avoid infection). Manipulation of the probe may have happened, to get the desired image on the screen. He would have explained the probe to her in detail. He always talked to patients during scans to reassure them and as far as he knew did so on this occasion. There was nothing inappropriate about his procedure.

Expert evidence was called on each side and there was some other evidence which it is unnecessary to detail. There can be no doubt that a transvaginal probe and the manner of its handling can be sexually suggestive. The issue is whether on this occasion the appellant deliberately exploited that potentiality. With regret but without doubt, their Lordships, like the PCC, conclude that he did. The evidence of Mrs E is convincing, particularly the parts of it relating to the eye contact and the silence. The occasion was unusual: if the appellant was acting in good faith, knowing that no chaperone or other person was in the vicinity he would have taken particular care, by conversation and in his demeanour in preparing and manipulating the probe, to avoid giving Mrs E any impression of sexual impropriety.

The specific findings of the PCC, with which their Lordships after independent consideration agree, were as follows:

"On the 7 August 1996 you had been consulted by Mrs E who was then in the early stages of pregnancy. She was a midwife and your colleague at the hospital. You offered to give her an ultrasound scan. We have found that the vaginal transducer used at this scan was prepared by you for use in a sexually inappropriate manner. In making these findings the Committee relied upon the context in which the vaginal transducer was prepared, namely:

(a) that no-one else was present and the door was closed;

(b) that no chaperon had been offered;

(c) that the shape and preparation of the vaginal transducer and the position in which it was held for preparation were inevitably sexually suggestive;

(d) that the lights were dimmed;

(e) that the vaginal transducer was unfamiliar to Mrs E and no adequate explanation for its use was given to her;

(f) that you placed Mrs E under pressure to consent to the use of the vaginal transducer by asking her whether she trusted you; and

(g) that Mrs E had not been told before entering the scan room that the scan to be carried out was transvaginal and not (as she had assumed) an abdominal scan.

On the appeal various points were taken for the appellant against the constitution and the procedure of the PCC. It was not challenged, however, that any of the suggested non-compliance with article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms would not matter if the appeal were dealt with by a court with full jurisdiction and providing the guarantees required by article 6. Having conducted a full de novo review of the evidence and having reached independent conclusions, the Board does not find it necessary to go into the points just mentioned. It is known that the medical disciplinary structure is under review; there is no occasion to add any general observations to what has already been said in Ghosh v General Medical Council (Privy Council Appeal No. 69 of 2000; judgment 18th June 2001) and Preiss v. General Dental Council (Privy Council Appeal No. 63 of 2000; judgment 17th July 2001).

From one point of view these two incidents in August 1996 may be described as relatively minor. Taken together, however, they show a readiness on the part of the appellant to exploit female patients for some form of sexual adventurism. In the view of the Board, again in agreement with the PCC, they constitute serious professional misconduct for which erasure of the appellant's name from the register was appropriate.

For these reasons their Lordships have humbly advised Her Majesty that the appeal ought to be dismissed. The appellant must pay the Council's costs before the Board.