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Cite as: [2016] EWHC 1247 (Admin)

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Neutral Citation Number: [2016] EWHC 1247 (Admin)
Case No: CO/5389/2015


Royal Courts of Justice
Strand, London, WC2A 2LL

B e f o r e :



- and -




Mary O'Rourke QC (instructed by Nabarros LLP) for the Claimant
Ivan Hare (instructed by GMC Legal) for the Defendant
Hearing dates: 12 May 2016



Crown Copyright ©

    Mrs Justice Patterson DBE:


  1. This is an appeal under section 40 of the Medical Act 1983 against a determination of 29 September 2015 when the Fitness to Practise Panel (FPP) on the part of the respondent found the appellant to be guilty of misconduct in relation to acts involving B and C and imposed a sanction of four months' suspension of the appellant's medical registration. The FPP found the appellant's fitness to practise to be impaired by reason of his misconduct in subjecting two of his female colleagues, B and C, to non-consensual and inappropriate touching.
  2. The appeal is against the factual findings at stage 1 of the regulatory process. There are nine grounds of appeal. The appellant accepts that should his challenge to the factual findings fail then the stage 2 findings of misconduct and impairment of fitness to practise should stand and that the sanction of a four month suspension of registration is fair, appropriate and proportionate.
  3. The grounds, it is agreed, can be distilled into three main areas of challenge. They are:
  4. i) Inadequate reasoning;

    ii) Perversity; and

    iii) Apparent Bias.

    It is accepted by the appellant that there is some overlap between the various grounds alleged.


  5. The appellant worked as an associate specialist in anaesthetics at the East Canterbury Hospitals NHS Foundation Trust (the Trust). On or about 23 June 2011 A, B and C made complaints to their line manager, Mr Siddle, of sexual assaults upon them by the appellant from May 2010 until April 2011:
  6. i) The complainant A was a first year student in the operating department practice course and made allegations of incidents between May 2010 and January 2011;

    ii) The complainant B was an operating department practitioner and made complaints about incidents between September 2010 and February 2011; and

    iii) The complainant C was a sister in the theatre department and made allegations about incidents in April 2011.

  7. All of the complaints were alleged to be incidents when each of the complainants was alone with the appellant.
  8. All of the parties continued to work, apparently as normal, until December 2011 when there was an internal disciplinary hearing. The appellant was unrepresented at that hearing. He was summarily dismissed immediately after the hearing. Subsequently, he issued proceedings for unfair dismissal in the Employment Tribunal. Those proceedings were successful in March 2013.
  9. In December 2011 all three complainants separately made allegations to the police of sexual assault by the appellant. The appellant was tried at Canterbury Crown Court in December 2012 on eight charges of indecent assault relating to A, B and C. He was acquitted on all counts. The transcripts of the evidence from the Crown Court were available to the General Medical Council (GMC) for their investigation and for the FPP of the Medical Practitioners Tribunal Service.
  10. The FPP hearing commenced on 15 January 2015. The original heads of charge run to 14 paragraphs.
  11. The FPP sat first from 15 to 29 January 2015. It heard live evidence from A, B and C and Mr Siddle. It heard evidence from the defence from the appellant, Dawn Martindale and Sally Abbott.
  12. The hearing was then adjourned until 18 May 2015. Closing submissions were made on that day by both parties.
  13. From 19 to 26 May the FPP carried out its deliberations.
  14. On 27 May 2015 the FPP delivered its determination of the facts. It found that none of the complaints by A were proved;
  15. It found that some, but not all, of the complaints by B and C were proved and that the appellant had, in summary:
  16. i) Touched B's lower hips and backside area on more than one occasion between October 2010 and February 2011 without her consent, inappropriately and with sexual motivation;

    ii) Asked personal questions of B between September 2010 and November 2010 and made an inappropriate suggestion to B between October 2010 and February 2011;

    iii) Moved his hand down C's back, patted her bottom and rubbed her bottom on 2 April 2011 without her consent, inappropriately and with sexual motivation; and

    iv) On 2 April 2011 held his arms out to C and asked her to come back to him, inappropriately and with sexual motivation, and asked why she kept running away from him.

  17. On 28 September 2015 the FPP resumed. It heard submissions and found the appellant's fitness to practise to be impaired. The following day the FPP heard submissions from both parties and decided that the appropriate sanction was a suspension of four months.
  18. Determination by the FPP

  19. The FPP had to determine 14 paragraphs of allegations against the appellant. The first was admitted, which was that the appellant was employed as a speciality doctor in anaesthetics at Canterbury Hospital.
  20. Of the other allegations all of those relating to A were dismissed. Those relating to B, which were paragraphs 6 to 10, were found proved only in part. Those relating to C, which were paragraphs 11 to 14, were, similarly, found proved only in part.
  21. Before setting out its findings the FPP dealt with certain general matters including allegations of collusion and contamination, the Crown Court trial, the appellant's evidence and the evidence of the complainants. In dealing with the generality of those matters the FPP said:
  22. "Collusion and contamination
    51. Submissions were made on your behalf that there had been collaboration between Ms A, Ms B and Ms C and that this had contaminated their evidence, either intentionally or unintentionally. There was no dispute that all three witnesses had reported the alleged incidents to Mr Siddle at the same time and in the presence of each other. It was also suggested that they met together and discussed these incidents on later occasions. It was further submitted that they may have been prepared to support the GMC's case against you, in order to attempt to redress the damage to their reputation at work, after your acquittal in the Crown Court.
    52. The Panel has borne in mind that it is not unusual for people to share those experiences which prompted them to make a complaint, nor for such people to conclude that they might wish to take such matters further some time after the incident or incidents complained of, particularly when they realised that there were others who may have had similar experiences. It has also borne in mind that there was no evidence that any of the complainants were experienced in matters of investigation, or that they would necessarily have appreciated or anticipated the forensic analysis to which their statements might subsequently be put. The Panel accepts that there were some changes and inconsistencies in the evidence and witness statements given by each complainant, but it has also borne in mind that these differences may have been as a consequence of more focussed questions which, had they been asked at the outset, might have resulted in greater consistency.
    53. The Panel noted that Ms A, Ms B and Ms C had maintained their complaints over several years, and were willing to give evidence in these proceedings, notwithstanding their vulnerability. The Panel also noted that all three complaints, although sexual in nature, were different in a number of respects. Despite each witness knowing about the complaint of the others, in the Panel's view, there was no reason to suspect that their evidence had been tailored to correspond more closely with each other, or that their evidence was overstated.
    54. Although the Panel recognised that discussion between the witnesses and delayed reporting may be understandable in certain circumstances, it adopted a cautious approach, when considering the consistency of the evidence from each complainant. However, in all the circumstances, despite the strong assertions made on your behalf, it did not find that there was any basis upon which the Panel could conclude that there had been, or might have been, collusion or contamination.
    Crown Court trial
    55. The Panel was told that all three complainants gave evidence at your Crown Court trial in December 2012, based on the allegation now before this Panel. However, the Panel has borne in mind that a jury does not provide reasons for its decisions, and that, in any event, criminal proceedings are determined on the criminal standard of proof, namely, beyond all reasonable doubt. The Panel noted that the jury returned 'not guilty' verdicts, in accordance with the criminal standard of proof, however, no inferences were drawn by the Panel from the conclusions reached by the jury when considering your case.
    Your evidence
    56. The Panel has taken into account the evidence of your good character, including the testimonials presented on your behalf. It has borne in mind that good character is not a defence, but, as a positive feature, it supports your credibility and should be taken into account when deciding whether the Panel accepts your account of events. Your good character may also mean that you are less likely to have acted in the manner alleged.
    57. You denied all the remaining allegations against you. You explained the incidents alleged by Ms B and Ms C, in part, by reference to the informal, friendly environment in which you all worked. You explained that, culturally, the notion of hugging was not something that you were used to, but that your wife encouraged you to fit in with the prevailing culture in the department where you were working. You therefore suggested that you 'received' hugs, and did not give them.
    58. However, the Panel also noted that you had hugged Ms A after she had performed a pole fitness demonstration whilst alone with you at work. You also accepted that you had hugged Ms B, when she was upset following an incident when she had challenged a surgeon for taking photographs in theatre, and Ms C, when she told you about a family bereavement. You also suggested that you had accidentally or unintentionally touched colleagues while working in an anaesthetic room. The Panel did not find your explanation convincing. Your evidence that you would have allowed these circumstances to arise, or would proactively give hugs to others was inconsistent with your assertion that you had genuine reticence about physical contact for cultural reasons. In those circumstances, the Panel concluded that this undermined your credibility. Therefore, the Panel was not satisfied that the evidence you gave, concerning your physical contact with colleagues, was wholly reliable.
    59. However, most importantly, when your evidence conflicted with the evidence of the complainants, the Panel simply preferred what appeared to be a genuine, unembellished account by the witnesses.
    Evidence of complainants
    60. The Panel noted that the alleged events are said to have occurred 3-4 years ago and that Ms A, Ms B and Ms C delayed reporting these events for several months. The Panel has borne in mind that it does not necessarily follow that late reporting undermines the validity of a complaint, or the overall credibility of the witness. Nevertheless, the Panel adopted a cautious approach with regard to the alleged dates. The Panel therefore only accepted specific dates or time periods if there was support for them from another source of evidence.
    61. The Panel noted that whilst you did not have any line management responsibilities for the complainants, you were a doctor of some years' experience and the complainants would have regarded you as being 'more senior' to them. The Panel also took the view that your seniority and status placed you in a position of trust and responsibility, with regard to other professional support colleagues.
    62. On a paragraph by paragraph basis, the Panel examined whether certain inconsistencies and discrepancies which it identified in the evidence of the complainants materially impacted on their credibility. In particular, the Panel considered whether the inconsistencies undermined their evidence as a whole, or only affected part of their evidence."
  23. In relation to B it said:
  24. "92. The Panel found that Ms B was a credible witness. She did not exaggerate and overall provided consistent evidence regarding very specific allegations which she had made against you. Where there were inconsistencies, the Panel did not find that this undermined her evidence as a whole. Her evidence was clear that, although she had worked with you after April 2011, there had been no further incidents. The Panel considered this contributed to her credibility. It is for these reasons that when there was direct conflict between your evidence and the evidence of Ms B, her evidence was preferred. However, where there was confusion or uncertainty, the Panel resolved this in your favour."
  25. In relation to C it said:
  26. "131. The Panel considered that Ms C gave clear, consistent evidence. She was a good witness, who provided a straightforward account of what had occurred and this contributed to her overall credibility and reliability. It is for these reasons that, when there was a direct conflict between your evidence and the evidence of Ms C, her evidence was preferred. However, where there was uncertainty, the Panel resolved this in your favour, but this did not undermine her evidence as a whole."

    Legal Framework

  27. An appeal under section 40 of the Medical Act 1983 is as of right from a decision of a FPP giving a direction for suspension. The issue for the court is whether the FPP's determination was wrong: see CPR 52.11(3).
  28. Whilst the appeal constitutes a "rehearing" it is a rehearing without hearing the evidence again. In Fish v General Medical Council [2012] EWHC 1269 (Admin) Foskett J said at [32]:
  29. "It is plain that where the conclusion of the FTP is largely based on the assessment of witnesses who have been 'seen and heard', this court will be very slow to interfere with that conclusion. Nonetheless, the court has a duty to consider all the material put before it on an appeal in order to discharge its own responsibility, appropriate deference being shown to conclusions of fact reached on the basis of the advantage of having seen and heard the witnesses."
  30. The issues of the approach to perversity and adequacy of reasons were both dealt with in the case of Southall v General Medical Council [2010] EWCA Civ 407. I deal with the issue of perversity first. Leveson LJ (as he then was) dealt with this at [47] to [48]. They read:
  31. "47. How is this submission to be approached? 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.'
    48. In my judgment, it is far from reasonably certain that the evidence was misread to such extent as itself justifies interfering with the assessment of the panel on issues of credibility and I am not in a position to say that a review of the transcript is more likely to produce a correct answer. The panel heard Mrs M (albeit over a television link) and were in a position to assess her evidence; they similarly heard all the other witnesses. Although I do not for one moment minimise the difficulty in seeking to assess what happened at an interview some 8 years prior to the hearing where the issue between the parties is so narrowly defined (namely the difference between making of an accusation of murder and asking questions which could create the perception of being accused of murder), provided that it can be shown that the issue has been addressed correctly, I would not be prepared to interfere with the findings of the panel. To translate the issue into slightly different terms, there was undoubtedly a case to answer and it was for the panel, as fact finders, to make up their minds about where the truth lay and, provided no other error is apparent, it is no part of the function of this court to interfere: given the overall thrust of her evidence, the 'concession' by Mrs M in cross examination to which I refer at paragraph 39 above need have been no more than the misunderstanding of what was a very complex assertion. I do not accept that the panel misunderstood the burden or standard of proof and reject the submission that its findings were perverse."
  32. On the issue of reasons he said:
  33. "55. For my part, I have no difficulty in concluding that, in straightforward cases, setting out the facts to be proved (as is the present practice of the GMC) and finding them proved or not proved will generally be sufficient both to demonstrate to the parties why they won or lost and to explain to any appellate tribunal the facts found. In most cases, particularly those concerned with comparatively simple conflicts of factual evidence, it will be obvious whose evidence has been rejected and why. In that regard, I echo and respectfully endorse the observations of Sir Mark Potter.
    56. When, however, the case is not straightforward and can properly be described as exceptional, the position is and will be different. Thus, although it is said that this case is no more than a simple issue of fact (namely, did Dr Southall use the words set out in the charge?), the true picture is far more complex. First, underlying the case for Dr Southall was the acceptance that Mrs M might perfectly justifiably have perceived herself as accused of murder with the result that the analysis of contemporaneous material some eight years later is of real importance: that the evidence which touched upon this conversation took over five days is testament to that complexity. Furthermore it cannot be said that the contemporaneous material was all one way: Dr Corfield's note (and, indeed, her evidence) supported the case that it was (or at least could have been) Mrs M's perception alone. Ms Salem's note (accepted by Mrs M as 100% accurate so far as it went) did not support the accusation and her evidence was that if those words had been said, she would have recorded them. I am not suggesting that a lengthy judgment was required but, in the circumstances of this case, a few sentences dealing with the salient issues was essential: this was an exceptional case and, I have no doubt, perceived to be so by the GMC, Dr Southall and the panel."
  34. The approach to the giving of reasons was referred to in the case of Yaacoub v General Medical Council [2012] EWHC 2779 (Admin) where Kenneth Parker J said at [27]:
  35. "So far as the giving of reasons are concerned, Girvan LJ (sitting as a judge of first instance) summarised the position as follows in Casey v GMC [2011] NIQB 95 at paragraph 6(c):
    '… the authorities establish that in most cases, particularly those concerned with comparatively simple conflicts of factual evidence, it will be obvious whose evidence has been rejected and why, thus satisfying the duty to make it clear to the losing party why he had lost. Where the issue is not straightforward the practitioner is entitled to know why his evidence in the case had been rejected. A few sentences dealing with salient issues may be essential. While a finding of fact based on the assessment of witnesses will only be interfered with if it can be regarded as plainly wrong or so out of tune with the evidence properly read as to be unreasonable, the relevant issues must have been properly addressed (see Leveson LJ in Southall v GMC [2010] EWCA 407). In Selvanathan v GMC [2000] 59 BM Lord Hope stated that in practice reasons should now always be given by the panel in their determination. Fairness requires that this be done so that the losing party can decide in an informed way whether or not to accept the decision. In Selvanathan however the Privy Council concluded that there were no grounds for thinking that the appellant had suffered any prejudice due to the absence of reasons, the matter being relatively straightforward. In Gupta, the Privy Council finding that there was no duty in that case to give full reasons than had been given, declined to give further guidance though it reiterated what had been stated in Selvanathan namely that in cases where fairness requires reasons they should be given. In Southall v GMC Leveson LJ concluded that in straightforward cases setting out the facts to be proved and finding them proved or not proved will generally be sufficient to demonstrate why the party lost or won and to explain the facts found. When the case is not straightforward and can properly be described as exceptional the position is and will be different. In such cases at least a few sentences dealing with the salient issue is essential. In that case having regard to the rejection of the doctor's evidence and her defence, she, the doctor, was entitled to know why, even if only by reference to demeanour, attitude or approach to the specific questions posed to the doctor. In that case it was nothing to do with not being wholly convincing it was about honesty and integrity and if the panel were impugning her in those regards it should have said so.'"
  36. In Muscat v Health Professions Council [2008] EWHC 2798 Silber J remarked at [108]:
  37. (c) The fact that the practitioner can study a transcript of the hearing, including not only the evidence but also the submissions on the evidence by the respective parties further assists the practitioner in understanding not only which witnesses' evidence the panel accepted and which it rejected but why it did so; and
    (d) To go further and to insist that in virtually all cases raising questions of credibility and reliability, a panel should formally indicate which witnesses it accepted and which it rejected would be to require it to perform what Lord Rodger described as an essentially sterile exercise."
  38. There is no dispute as to the test of apparent bias which is whether a fair minded and informed observer, having considered the facts, would conclude that there is a real possibility that the tribunal was biased: see Porter v Magill [2002] 2 AC 357 at [103]. In Helow v Home Secretary [2008] 1 WLR 2416 Lord Hope said of the fair minded observer at [2] that she was, "the sort of person who always reserves judgment on every point until she has seen and fully understood both sides of the argument. She is not unduly sensitive or suspicious," nor complacent.
  39. The Challenge

  40. In her comprehensive oral argument, Miss O'Rourke QC, for the appellant, placed considerably more emphasis on inadequate reasons as the main ground of challenge than perversity. What she submitted was that when all the inadequate reasons were added up the decision became perverse because so much had gone wrong with the case.
  41. Reasons

    Ms B

  42. The claimant submits that B's evidence was not specific or consistent: it changed three to four times. B was clear that after April 2011 there were no further problems with the appellant. The appellant contends it is unlikely that anyone could carry on working with a sexual assailant in the way that was described here.
  43. As to touching B's lower hips and backside area when alone in the anaesthetic room it is submitted that the FPP relied upon B's evidence but did not identify which part or how they reconciled her inconsistencies.
  44. The FPP referred to her statement to the police when she had said that the appellant had placed one hand on the backside area and held it there for several seconds on about four occasions between October 2010 and February 2011. In her Crown Court evidence B agreed that the appellant had sometimes touched her to move her. On some occasions though she said that that had occurred when there was no trolley in the room so that there was plenty of space for the appellant to move by. She said also that the appellant did not always close the doors and windows to the theatre so that people would be able to see inside.
  45. The FPP found that the appellant had said words to the effect to B that they "should get together and have some drinks, get drunk, you know, and let things happen." The appellant contends that there was no evidence before the FPP to support that.
  46. In a different context, and in relation to a different allegation, the FPP had accepted that B may have conflated certain events. It said:
  47. "118. The Panel noted that a number of incidents mentioned in Ms B's statement to the Trust were not repeated in her evidence. Given the reference to being at the head of a trolley in respect of two different incidents, Ms B's evidence raised a concern that she may have conflated two separate events since her original statement to the Trust, due to the passage of time. She was also unable to specify with any precision when this incident was alleged to have occurred. No explanation was given as to how February 2011 came to be specified as the date for this alleged incident."
  48. The appellant submits that that finding must have an overall affect on B's credibility. Her account was rejected by the FPP due to a lack of particulars on that allegation whereas it was accepted on the general account that the appellant had touched her backside.
  49. The same point arose in relation to the allegation under paragraph 9 of the heads of charge where the FPP contended that the appellant had come up behind B and placed both his hands on her bottom. The FPP there said:
  50. "123. The phrase 'on a separate occasion on the same day in February 2011' presupposes that the Panel has made a finding that something else occurred on a date in February 2011. The Panel has not made any such finding, having been unable to rely on Ms B's evidence in respect of paragraph 8 above. The Panel did not go on to consider amending 'separate occasion' to 'an occasion' because the two events are said to have taken place on the same day, therefore the Panel's finding with regard to the time period in paragraph 8 above equally applies to this paragraph of the allegation. The Panel is therefore not satisfied on the balance of probabilities that the incident alleged in this paragraph of the allegation took place, if it took place at all. Accordingly, the Panel has found this paragraph of the allegation not proved."
  51. In contrast, the FPP found paragraph 10 proved. They said there:
  52. "125. The Panel accepts that you and Ms B were working in a close environment where it may have been necessary for you to require her to move, from time to time. It considers that on those occasions where this was necessary, consent would have been implied, in principle, for you to touch Ms B.
    126. The Panel does not consider that it would have been necessary in any circumstances for you to touch her bottom in order to move her and the Panel does not accept that there was implied consent for you to touch Ms B's bottom, due to the intimacy of such an action. It is clear from the evidence of Ms B that she did not consider that she had given you consent to touch her bottom and the Panel has accepted her evidence. Notwithstanding the difficulties in Ms B's recollection as to the timing of incidents, the Panel preferred her clear, consistent evidence regarding the way in which you touched her.
    127. In all these circumstances, and on the balance of probabilities, the Panel has concluded that Ms B did not give you express or implied consent to touch her bottom. Accordingly, this paragraph of the allegation is found proved."
  53. As a result the appellant contends that the FPP were not clear and were not consistent in their findings and approach. Far from being consistent, witness B was most inconsistent in her evidence.
  54. Ms C

  55. The appellant contends that C changed her evidence so many times that the FPP's finding in paragraph 131 of its determination (set out above in paragraph 19) is amazing.
  56. The first allegation of concern in relation to C was that while she was working in the theatre on the computer the appellant had approached her from behind. The FPP found:
  57. "135. The Panel noted that Ms C was able to pinpoint the date when this incident occurred, by reference to a family bereavement. You did not dispute that you had touched Ms C on the day she told you about the bereavement. However, it was put forward on your behalf that the timings of your work in theatre on 2 April 2011 did not match with the circumstances of the incident as given by Ms C.
    136. The Panel noted that Ms C checked the date of the bereavement with another member of her family. It is therefore satisfied, on the balance of probabilities, that the incident alleged occurred on 2 April 2011, notwithstanding that Ms C may have got the timings wrong.
    137. The Panel considers that in the light of the evidence regarding Ms C's work at the computer, she would, more likely than not, have been facing towards her computer screen. The Panel considers that in order to approach her, it is more likely than not that you did so from behind. Accordingly, the Panel has found this paragraph of the allegation is found proved."
  58. The appellant contends that it was not just timing that C got wrong but her whole account. The real significance is to be found in the sequence of events and not just the timings.
  59. On the allegation that the appellant had held his arms out towards C and asked her to come back to him after he had moved away, which allegation the FPP found proved, there was no reasoning other than that the FPP preferred C's evidence. They said:
  60. "146. The Panel preferred the evidence of Ms C in this respect. It was satisfied that she was a good witness, who provided a straightforward account of what had occurred. Therefore, on the balance of probabilities, the Panel finds that you behaved as alleged. Accordingly, this paragraph of the allegation is found proved."
  61. Of the allegations at paragraph 13, (a) and (b) were found not to be proved whereas (c), (d) and (e) were. On each of those occasions C was saying that she felt disgusted by the appellant's actions. The appellant submitted that there was no reasoning by the FPP where they said:
  62. "Paragraph 13 in relation to paragraph 11.c Found proved
    155. The Panel has found that you moved your hand down Ms C's back. Ms C stated that she did not want you to do this and that your behaviour made her feel disgusted. The Panel concluded that this action was not an extension of your placing of your arm around her shoulder but was the first step in you touching her bottom.
    156. The Panel was in no doubt that Ms C did not wish you to touch her in the way that you did. It is satisfied that she did not give you express or implied consent to move your hand down her back. Accordingly, this paragraph of the allegation is found proved.
    Paragraph 13 in relation to paragraph 11.d Found proved
    157. The Panel has found that you patted Ms C's bottom. Ms C stated that she did not want you to do this and that your behaviour made her feel disgusted.
    158. The Panel was in no doubt that Ms C did not wish you to touch her in the way that you did. It is satisfied that she did not give you express or implied consent to pat her bottom. Accordingly, this paragraph of the allegation is found proved.
    Paragraph 13 in relation to paragraph 11.d Found proved
    159. The Panel has found that you rubbed Ms C's bottom. Ms C stated that she did not want you to do this and that your behaviour made her feel disgusted.
    160. The Panel was in no doubt that Ms C did not wish you to touch her in the way that you did. It is satisfied that she did not give you express or implied consent to rub her bottom. Accordingly, this paragraph of the allegation is found proved."
  63. In contrast when the transcripts of the evidence before the FPP were gone through, first in relation to B, the appellant draws attention to the following in relation to
  64. i) The hug:

    "Q: And Senthil consoled and comforted you and offered you a hug?
    A: I did, I did accept the hug"

    ii) The swing doors:

    "Q: You never know. You talked about in this paragraph here that he would close the doors and conceal the windows for privacy.
    A: Yes.
    Q: Firstly, the doors do not lock to the anaesthetic room.
    A: I never said that they locked. I just said they closed.
    Q: They are swing doors.
    A: Yes
    Q: Somebody can swing through them at any moment.
    A: Absolutely, yes.
    Q: They are two-way doors.
    A: What do you mean?
    Q: In other words, they swing open that way or they spring open this way. In other words, they are not fixed doors like that one over there. They swing in both directions, so if somebody is coming in, they will swing inwards; if somebody is going out, they will swing outwards.
    A: Yes, I think so.
    Q: We say he did not close them.
    A: I am saying he definitely closed them.
    Q: Every time he was in the anaesthetic room with you?
    A: Not every time, but sometimes.
    Q: Right. Define 'sometimes'.
    A: Sometimes, just on some occasions.
    Q: How many occasions do you say in November and December 2010 that he closed the windows?
    A: I cannot say a number. I cannot say a number. I do not know how many times.
    Q: You describe in that statement that approximately during the months of November and December he placed his hand around your hips and bottom and sought every opportunity to have conversation. How many times in November and December?
    A: Did he touch me?
    Q: In the anaesthetic room.
    A: I would say four or five times, but it was from November and I think it went over the year as well.
    Q: Over the New Year?
    A: Yes.
    Q: You cannot give us any help as to the date of any of those occasions?
    A: No.
    Q: As to the time of day?
    A: It was during the operating list."

    iii) On contamination exchanges went as follows:

    "Q: You then say, 'I have since however been aware of other female colleagues who had experienced similar, sometimes worse, experience, that is why I am reporting this now'. That is what you wrote on 1 July, yes?
    A: Uh-huh.
    Q: How did you and the other colleagues come to even be discussing it to find out what others were saying?
    A: I remember working in theatre, theatre 1, actually, with the Doctor and one of the other witnesses, she was also in there and I felt really awkward. It was really uncomfortable. He was really, really close to me, and then when people would come in he would stand back and, you know, kind of move away from me, and I asked her 'How do you find working with him?' and she said that she found him a little bit, bit creepy, pervy kind of.
    Q: Pervy, creepy?
    A: Yes.
    Q: When was this conversation?
    A: I have absolutely no idea.
    Q: Was it June 2011 when you go and complain?
    A: No.
    Q: When was it?
    A: It was before then.
    Q: So it was before you swapped departments?
    A: No, it was not before I swapped departments, it was after I went up to main theatres.
    Q: How long in advance of making the complaint to Ivan Siddle, which we know was the end of June? How long in advance of that did this conversation take place?
    A: I do not know.
    Q: Was it with A or with C?
    A: C.
    Q: Did all three of you then sit down and discuss it?
    A: We did not really sit down together, we just kind of came to the conclusion that this was ---
    Q: There were three of you together discussing him?
    A: Only when we went to Ivan Siddle.
    Q: How did you get to go to Ivan Siddle unless you had a three-way conversation?
    A: I see what you mean. We did not literally sit down and talk about it. We were just kind of, you know, I would talk to one of them and the other one would talk to me. I cannot remember a time when we actually all sat down together.
    Q: In terms of the discussion did they share their experience with you and you shared your experience with them?
    A: Not in detail.
    Q: What do you mean 'not in detail'? What did you share with them and they share with you?
    A: Just that he was touching inappropriately.
    Q: Who was using that word that it was inappropriate?
    A: I cannot remember the exact words I used, but that is what I was saying, because it was inappropriate.
    Q: Do you think you are reading something into something that did not happen because of other whispers that you listened to around the hospital?
    A: No, what whispers?
    Q: Because you answered my question a few minutes ago by saying you did not think you had been sexually assaulted; you said something this morning that was, 'I didn't realise that I had been', so what I am suggesting to you is there has been innocent brushing past you or touching you in a small area because of the confinement of the area and then when you hear other whispers you misinterpret it.
    A: No, because this had never happened to me before, and I have been there ten years and I have never been touched by a Doctor in that way, so I am not making it up. Otherwise I could have complained about everybody."

    The appellant submits that it was fundamental to the evidence of B that she could give no other particulars other than she had been touched. When asked about discussing the case the following exchange took place:

    "Q: Who have you been discussing the case with?
    A: I have not been discussing details with anybody.
    Q: Then where has it come from?
    A: I do not know. I have no idea where that came from.
    Q: You have been discussing the case with A and C, have you not?
    A: Not in detail.
    Q: Who else have you discussed it with? Anyone in the Trust?
    A: Let me think.
    Q: What about Ms Dighton, Cassandra, Cassie? Did she tell you that?
    A: I do not think so, but I do not know. I do not know where that information came from."
  65. Her previous evidence at the Crown Court was put to her during cross-examination as follows:
  66. "Q: You answered, 'Sometimes it was to move me ---'? That is accepting, is it not, that he did touch you in the lower back or bottom area but to move you out of the way?
    A: Actually, reading that, I actually disagree with that.
    Q: You want to change the answer you gave to Judge and Jury on oath?
    A: Basically, because I do not always understand the question that I am asked. It was sometimes to move me but not in that area. It would be a general…
    Q: Her question was quite specific, if you look at it, at 'C'---
    A: I know but when you are under pressure you do not actually hear everything.
    Q: You did not ask for the question to be repeated?
    A: I know I did not on that day because I was unwell.
    Q: Three times further she made sure that you got the right answer. If you look below, she asks it again: 'Sometimes it was to move you'. Then, between 'F' and 'G': 'So you would agree that he did, on occasion, touch you to move you? A: Yes – but on the bottom area.' You are agreeing he would be touching you on the bottom to move you?
    A: Not to move me, no.
    Q: That is what you said?
    A: Okay. That is what I said in here but this is what I remember now."
  67. The appellant submits that the fact that B was remembering differently amounted to a significantly retracted account and change to her evidence.
  68. B was asked again about collusion with A and C as follows:
  69. "Q: What that before you gave your evidence and after you gave your evidence that you were all in the one room together?
    A: Yes.
    Q: Both?
    A: Yes, before and after. Yes, the whole day.
    Q: Also in the hotel as well?
    A: No, the whole day.
    Q: The whole day?
    A: Yes.
    Q: You waited? When one of you had gone in to give evidence, that person did not stay inside, they came back out to the room where the others were?
    A: Yes, we was all---
    Q: Whoever gave evidence first, I think that was 'A', you were second and 'C' was last? When 'A' came back out and you when in, she waited with 'C'?
    A: Yes.
    Q: When you came back out and 'C' when in, you waited with 'A'?
    A: I think so, yes. I think we were all in the same… Yes, we were guided back to that room.
    Q: The three of you wanted to come to Manchester together, did you not?
    A: Yes. We were under the impression that that is what was going to happen anyway. We did not know any different.
    Q: You wanted to travel together, be in the same hotel together and be present when the other was giving evidence? I do not mean be present in the room but be present in a waiting room?
    A: Because we thought that that is what happened at court I just assumed that that is what happened here. I did not know any different."
  70. In relation to C, on the transcript of the FPP hearing, the issue of contamination and collusion was dealt with as follows:
  71. "Q: However, you had had a discussion with Mr Siddle, had you not?
    A: Yes.
    Q: It was all three of you together.
    A: Speaking to Mr Siddle, yes.
    Q: All three of you were giving him some of your account.
    A: Yes.
    Q: You had heard some of what B had to say and some of what A had to say. Ms A is the witness who is TA.
    A: I would have heard something of what they had said.
    Q: Indeed the reason that you came to speak to Mr Siddle was because you had, to an extent, shared accounts beforehand in order to decide to go jointly and do something. That is right, is it not?
    A: Not details of accounts, but I had become aware through a comment made by one of the others.
    A: There was a meeting with a lady from HR whose name I do not remember.
    Q: Do you remember when that meeting took place?
    A: Not quickly, as in not the same week, but subsequently.
    Q: Within a week, three weeks, a month?
    A: I do not know. I would be guessing.
    Q: Who was at that meeting? A and B?
    A: I think one of them or both were there but I am not sure. I am not sure. I would think they would have documented who was there."
  72. She was asked about the appellant hugging her and placing his arm around her shoulder as follows:
  73. "Q: We will come back to that in a moment when we see what else you say at a later stage. You say he asked you again. You explained what had happened and then you say, 'He put his arm around my shoulder'. On that account he puts his arm around your shoulder after you tell him of your bereavement.
    A: Yes.
    Q: You then say, 'which did not worry me'.
    A: No.
    Q: That is presumably because you see that as a consolatory hug or ---
    A: I would say that that is an ordinary response."
  74. C was then asked about the contradictions between her evidence to the police and what she was saying to the FPP as follows:
  75. "Q: It goes on, 'AND PULLED [then I think it is informant] TOWARDS HIM AND HE WAS RUBBING THE INFORMANTS BOTTOM WITH HIS HANDS', plural. If we go back to your statement on page 40, your statement is really rather different because it says, 'He put his arm', which is singular, 'around my shoulder which did not worry me, then he moved his arm', singular, 'down my back and started patting and rubbing me on the bottom'. Let me point out the three differences and see if you agree. Firstly, in your account given in June, which you confirmed to me ten minutes ago was the version you stand by and is correct, it is an arm, nor arms or hands.
    A: Yes. That is correct.
    Q: Secondly, it is around your shoulder. It is not pulling you towards him. There is no pulling. It is simply a consolatory arm around the shoulder which you thought nothing of because that is what you do when you are bereaved. Thirdly, the difference is, he was rubbing your bottom with his hands, plural, whereas you have simply got, 'with one arm', the same arm that he has put down and he pats and rubs, so three differences.
    A: Yes.
    Q: Did the police get it wrong or did you say that to the police?
    A: This is not accurate. I do not believe the words used in the police – this is the first time I have seen this, obviously, and I do not believe that the words are accurate.
    Q: It then says, 'STATES THAT SENTHIL WOULD NOT LET GO OF HER'. That is not right either because you say, 'he started to'. If we look back at 40, you use the words, 'started patting', and that is when you stepped away. There is no suggestion in your statement on page 40 that he would not let you go and you managed to get free and left quickly.
    A: I do not think that wording is accurate.
    Q: You think this whole version is wrong?
    A: I do not think that is accurate."
  76. And on the issue of timings C said:
  77. "Q: In your previous statement in June, you do not identify that it is that period in time. You say, 'later that day he came back to theatre'. Are you sure it was an hour or so later?
    A: I am not sure now.
    Q: Why did you say it to the police?
    A: Obviously, I believed at the time in 2012 that it was approximately an hour or so later, but I do not remember the period of time. It was four years ago. I do not remember the period of time.
    Q: I understand that. You see you told us earlier that you said, '11.30', for the first incident. You then said in answer to my questions, 'Well, it could have been a bit later'. I asked you how much later and you said, 'Less than half an hour later'.
    A: I think I said within an hour or so later."

    In fact the appellant submits that C's evidence as to timing is wrong as it is contradicted by the Theatreman records. They are records kept of the times when the various personnel are within the theatre.

  78. The position was revisited in the context of the evidence that C had given in the Crown Court when she was being cross-examined:
  79. "Q: If we then turn the page to page 84, right at the top of the page, she is saying to you that the timing is wrong because she says, 'I am suggesting to you that on Saturday, the 2nd April, before 1 o'clock in the afternoon. So you are wrong about the timing'. You reply, 'I don't understand how it can be incorrect. I am 100 per cent certain'. That is what you said then. Do you stand by that now? You told the jury, '100 per cent'.
    A: Since that time, I have seen the Theatre Man, the print outs of the cases which obviously show that it was slightly later. At the time, I was 100 per cent certain that it had happened late that morning, but now I believe it could have been slightly earlier than I said, as I have already said.
    Q: We are going to come to that in a moment. The Theatre Man records, we are going to come on to what she said and see how and why your version changed. At that time, you agree you said, '100 per cent certain', and then you say, 'Perhaps I have confused the date – but it was certainly a Saturday and certainly during the morning'. Again, you are saying 'certainly during the morning'. Yes?
    A: Yes.
    Q: Also, 'certainly a Saturday'.
    A: Yes."
  80. The appellant contends that C changed her account as is evident from the transcript:
  81. "Q: You then say, 'After the second procedure the rest of the team had left theatre and he asked me what was wrong'. That suggests that he is in theatre when you have the first discussion, so in other words it is after a procedure you have done with him.
    A: As I said, he was not needed for the anaesthetic for the first procedure but I believe he was around for the first procedure waiting to do his case which was second.
    Q: You have not said that at any time before today.
    A: No, I have not.
    Q: What you very clearly said within two and a half months of the incident was that he was asking you questions throughout the morning and then in a gap after a case had finished, when everyone else had left theatre suggesting he had stayed behind – that has got to be a nonsense because as the anaesthetist he has got to go to recovery with the patient and set her up – he then asked what had happened. So very clearly what you are saying is, (a) it was the morning, (b) it was after a case in which he had been in theatre and been involved in and (c) the rest of the team left but he did not. That is simply incorrect on the documentation that we have got from the Trust, is it not?
    A: I did not say that it was a case that he was involved in. As I said, he was not involved in the first case but I believe he was around in the department.
    Q: You are saying that for the first time here today.
    A: Okay, then I am saying that for the first time here today but that is what I believe to be the truth."
  82. The appellant submits that none of that was dealt with by the FPP who brushed away C's changed account. She was further asked about what she had said in the Crown Court as follows:
  83. "Q: Let us go back to what happened at the Crown Court, which is what I was asking you. It does throw into doubt everything in the top half of your statement on page 40, does it not? The second case, the timing and talking to him throughout the morning, all of that is thrown into doubt by these documents.
    A: I would agree with you that the timing, now I have been able to see it on paper – I could have been out with the timing. It certainly does not change what happened.
    Q: You are not just out with the timing. You are out with the account that this was a discussion throughout the morning. You are out with the fact that it was after the second case regardless of what time it is. You are then in fact out with what to do down below because you then say that later that day he came back to theatre when I was there alone and he asked me again, 'Why I kept running?' When is that even occurring because you told the police it was an hour later, and I asked you earlier and you said, 'Yes, it was about an hour later', so when did that fit in, 'later that day he came back to theatre when I was there alone'. The only time that you conceivably could have been there alone, because the next two operations literally go back to back, is going to be some time after 4 o'clock, between 4 o'clock and 6.23 pm.
    A: As I said, I cannot say accurately. It would be between the cases. That is all I can say."
  84. C maintained that she was not mistaken as to the sequence of events but might have been on timing as evidenced in the following exchange:
  85. "Q: …You identify them. If we then look at paragraph 6, you say, 'The assault happened on 2 April 2011. I remember the date because I had received some bad news regarding one of my relatives on this date'. We just looked a moment ago, where you told Miss Hollis that maybe it was not that date; maybe it was some other date. Why do you change from that position to what you say in paragraph 6?
    A: I was going into the court. I was sure that it was that date. I was obviously in a state of extreme anxiety during the questioning and trying to rationalise in my head what she was trying to say to me, but I always believed it to be that date and I still believe it to be that date.
    Q: You then say at paragraph 7, 'This date can be checked using our computer system which is called Theatre Man'. Yes?
    A: Yes.
    Q: '[Theatre Man] is the system in which we record all the information'. You can exhibit three theatre audit reports. They are the ones that we have already looked at. Yes?
    A: Yes.
    Q: In fact those three theatre reports do not support what is said in your accounts, either as given to the Trust or as given to the police. I think you accept that, do you not?
    A: In terms of timing, yes."
  86. Those examples, the appellant submits, illustrate the complete absence on the part of the FPP to grapple with C's evidence and the inconsistencies within her various accounts.
  87. Mr Siddle was the line manager to B and A. He was questioned by the FPP about the Theatreman records because they were damaging to the accounts given by the complainants. He confirmed that in terms of theatre hierarchy no doctor was senior to other people.
  88. Dawn Martindale gave evidence as an independent witness and was questioned by the FPP on the Theatreman records and their integrity because of the problems that they caused to A and C.
  89. Further, despite all the evidence going before the FPP, including that from the Crown Court, the FPP made no reference to the totality.
  90. It is of note, the appellant submits, that the GMC's closing submissions were very short compared with lengthy and detailed submissions made on behalf of the appellant.
  91. It is agreed that the FPP were given correct advice from their legal assessor as to how to determine under rule 17(2)(i) whether the disputed facts were proved. In particular, the FPP were advised:
  92. "General Approach
    1. You must consider each allegation separately.
    2. It matters not whether you start your consideration of the evidence with an overall assessment of the witnesses or whether you start by assessing the detail of the evidence before you, provided you do both and provided that you do not 'cherry pick' the evidence to fit a pre-formed view or a particular theory .
    5. The GMC's case is restricted to the dates and/or time frame as set out in the allegation. If you are uncertain about a specific date, for example 2 April 2011 (in relation to Ms C), to the extent that you are not satisfied on the balance of probabilities that the stem is correct, that particular allegation must fail. If you are not satisfied on the balance of probabilities that an event did occur within a specified time frame, for example May 2010 – September 2010 (In relation to Ms A), again that allegation or series of allegations must fail. If you are uncertain about a date within a specified time frame, you must take this factor into account when assessing the overall reliability of the witness's evidence (see later).
    6. You must assess the evidence you have heard by the same fair standards, whether it is documentary evidence, witness statements that have been read, evidence given via video-link, telephone evidence or evidence in person from within the hearing room."

    They were advised further on:

    "Credibility and Reliability
    As not all of the witness evidence can be reconciled, your assessment of their credibility and reliability will be central to your determination of the facts. As you will know it is not unusual for honest witnesses to give different accounts of the same incident. In assessing any variation in the accounts given by GMC witnesses, you should consider not only the passage of time in the general sense and the effect that this has on memory, but issues such as the time between the occurrence and the first time the witness was asked to provide a written account of the incident, the nature and materiality of the variation and the context in which the encounter or incident took place.
    Furthermore, you should not assess credibility or reliability from the premise that a true account is always consistent or that an inconsistent account is always untrue. As I am sure you know, a verdict of not guilty in the crown court simply means that the jury did not find the charges proved beyond reasonable doubt.
    The documentary records in the form of the TheatreMan records are accepted by the GMC as evidence of the personnel in theatre at the relevant time. These records are not in dispute and so you must accept them as evidence of truth. Dawn Martindale has provided you with independent evidence based on the rota and on the TheatreMan records. She checked all relevant dates and periods and her evidence is not in dispute, and so once again you must accept it as evidence of truth."


    "In considering each paragraph of the allegation separately and on its own merits, you should not ignore the background circumstances, which includes any facts that you may already have found proved. It may be that your decision on the facts of one allegation may assist you in coming to a conclusion on another allegation. However, it does not necessarily follow that a finding of fact in relation to one allegation will lead you automatically to conclude that another allegation must also be found proved. You must reach separate decisions on each paragraph in the allegation having focused on each separately and having formed a separate decision about each.
    Importantly, before evidence in relation to Ms A could be relevant to the allegations relating to Ms B or Ms C (or vice versa), you must be satisfied on the balance of possibilities that this evidence has not been influenced in any way, whether consciously or subconsciously, as a result of hearing about the allegations from another. The defence assert that the opportunity for contamination includes the discussion in Ivan Siddle's office where the initial accounts of Ms A, B and C were relayed in the presence of each other and when they gave evidence at the crown court. It is only if you are satisfied on the balance of probabilities that there has been no contamination, and that the evidence of each witness is reliable, that it may be taken into account tin relation to another set of allegations."
  93. The FPP then deliberated for some three days before returning with some questions of clarification. At the end of that the legal assessor advised the FPP again ending with:
  94. "Finally, I remind you of my previous advice with regards to considering the totality of the evidence. Having considered all of the evidence you may accept or reject any aspect of a witness's evidence other than the evidence you are required to accept as evidence of truth, namely, the evidence of Dawn Martindale and the associated records. However, if you reject a particular piece of evidence from a witness, you must go on to decide how this impacts on the specific allegations and whether it affects only a part of their evidence or fundamentally and materially undermines their evidence as a whole. That concludes my advice."
  95. From the above the appellant contends that the reasons were inadequate. The FPP ducked dealing with many parts of the evidence and, in particular, ducked dealing with the reconciliation between the witness statements and evidence given at different stages.
  96. Perversity

  97. The appellant maintains his ground of perversity but runs it, as I have set out, as a secondary basis of challenge. Each case had to be looked at in its own circumstances. Here there were three complainants, A, B and C, and the time period of the alleged misconduct was from May 2010 until April 2011. The complaints were not made until June 2012. That made the instant case stronger than that in Southall where there was one subhead of charge and one interview. Here, there was, in addition, the initial investigation, the Crown Court proceedings, the following GMC investigation and the proceedings before the FPP. In effect, when the matter was heard by the FPP it was a retrial after the first investigation and the Crown Court. There were many inconsistencies between the Trust statements, the criminal trial with the police evidence and the oral evidence that was given to the FPP. In the circumstances, it was not sufficient to do what the FPP did here.
  98. Apparent Bias

  99. On the issue of apparent bias it is submitted that the reasonable observer would be horrified. The FPP comprised of three lawyers. It questioned Dawn Martindale on her evidence about the Theatreman records which ought to have been accepted. It attempted to amend the charges in a manner prejudicial to the appellant, and without prompting from the GMC, and spent some six days reaching and writing its determination following one day of closing submissions, advice from its legal assessor and a four month break prior to those submissions. It indicated that there was no need to hear from live witnesses as to the appellant's character and disposition, it ignored the texts sent by B after the alleged assaults, it wrongly identified the appellant as senior to the witnesses despite evidence to the contrary, and it wrongly approached the evidence on the basis that C was vulnerable at the time of the assault. It took some six hours in reaching and writing a stage 2 determination on impairment.
  100. Respondent's Submissions


  101. The respondent submits that the appellant has failed to have regard to the basis of fact finding done at the first instance: see Yaacoub. Because the fact finder finds part of the evidence is wrong it does not follow that the whole of the evidence of that witness is to be rejected.
  102. The key to the case is to have regard to the heads of charge. Where a charge has been made out that is on the evidence, as a whole, submitted to the FPP. If the charge is not made out it is of limited relevance.
  103. The approach to an individual witness' evidence is not on an all or nothing basis. The court has to give a degree of respect to the FPP because of its role as the primary fact finder.
  104. In fact, the disputes of fact were relatively limited. The appellant accepted that he had touched B and C but maintained that it was to ask them to move out of the way. It was never disputed that, on occasions, he had been alone with B and with C. The dispute was whether he had touched them on the bottom. The FPP found that he did touch each of them. The issue of sexual touching was a matter for the FPP and was a conclusion that could be reached as an inference to be drawn from the facts as found by the FPP.
  105. The case involved a conflict of testimony and the FPP was required to choose which account it believed. That did not require extensive reasoning: see Taghipour v General Medical Council [2014] EWHC 2500 (Admin) at [112] to [116].
  106. Perversity

  107. On perversity the case was not exceptional. It may have been unusual with three sets of witness statements but that did not mean to say that the issues involved were exceptional. The Crown Court transcripts were put to the witnesses in detailed cross-examination. The main witnesses were vulnerable as they were upset with the outcome of the criminal trial which led to them having to be coaxed into giving evidence before the FPP. That was not consistent with having a grudge against the appellant and making it up. Although the evidence of B was not a model of clarity the FPP had the benefit of being able to observe her give evidence and be cross-examined over a period of two days. A similar process was followed with C albeit over one day. That was a real benefit.
  108. Apparent Bias

  109. On the issue of bias it is of note that a number of significant matters were decided in the appellant's favour. A's evidence was to a large part rejected by the FPP. Ms Martindale's evidence was subject to appropriate questioning. As to the FPP considering amending the heads of charge they are entitled to do so under rule 17(3) but having listened to submissions from both sides the decision was not to make any amendment. The lengthy period of deliberation reflected the seriousness with which the FPP approached its tasks and the numerous allegations that it had to consider. The FPP has set out how they approached the appellant's evidence which was not evidence of bias.
  110. Discussion and Conclusions


  111. The proceedings before the FPP took place in accordance with the following timeline. From 15 to 29 January 2015 the FPP heard live evidence from A, B and C and Mr Siddle. They heard evidence for the defence from the appellant, Dawn Martindale and Sally Abbott. The proceedings went part heard and were resumed for eight days. On 18 May the FPP reconvened and heard closing submissions on the facts. They deliberated and on 27 May delivered their determination. On 28 September 2015 the FPP resumed and heard submissions on stage 2 of the process, namely, whether the appellant's fitness to practise was impaired and determined that it was. On 29 September the FPP heard submissions on sanction and decided that a suspension of four months was appropriate for the appellant. That sanction has not been implemented and its imposition is awaiting the outcome of these current proceedings.
  112. I have to bear in mind that the FPP heard evidence at some length including detailed cross-examination on previous statements and evidence given at the Crown Court as well as before the FPP. That will have given the members of the FPP a distinct advantage in assessing the credibility of the individual witnesses. The mere fact that a witness may be believed in one part but disbelieved in another part of its evidence does not necessarily mean that there is a flaw in the approach of the FPP. It may simply be that either the clarity of the recall or other evidence, circumstantial or otherwise, assisted in the FPP in reaching its conclusions. I must accord a degree of deference to the FPP in their findings on the primary facts whilst discharging the duty upon the court itself.
  113. There is an additional general point which is that, although the exercise for the FPP may have been more than averagely complicated with the different layers of evidence from the initial complaint, the Crown Court trial, the GMC investigation and oral evidence, the task for the FPP was essentially one of determining the credibility of witnesses. In discharging that task the FPP were aware that it had to be discharged to the civil standard (and so different from that of the Crown Court) in relation to the allegations before them and that they had to be alert to the risks of collusion and contamination as between the complainants in respect of which the FPP had received clear advice (agreed by the appellant to be correct) from its legal assessor.
  114. Further, in my judgment, nothing can be inferred from the length of closing submissions by either party. Those made on behalf of the GMC referred to the fact that the FPP had the transcripts of all the evidence which the FPP had read. They were invited not to forget the witness statements and refer back to them as they were as much evidence as the oral testimony, cross-examination and re-examination and to give them equal weight. Certain examples were given as illustrative of credibility and honesty but the task for the FPP was to decide who was more likely to be telling the truth. The closing submissions for the appellant, understandably, went through the charges in considerably greater detail. It is matter of individual judgment on the part of the advocate as to how lengthy closing submissions should be. The FPP are entitled to take into account the arguments placed before it in closing submissions but the submissions are not evidence. There is nothing to indicate that the FPP dealt with the respective submissions on behalf of the GMC and the appellant unfairly. There is nothing in this point.
  115. The appellant had made a submission of no case to answer in respect of paragraphs 14.b (in relation to paragraphs 6.a and 6.b) and 12.b only. The submission was upheld in relation to 12.b. There had been no such submission in relation to the touching of the bottoms of B and C. An inference can, therefore, be drawn that the evidence given by the complainants was not so inherently inconsistent that no reliance could be placed upon it by the FPP.
  116. Reasons

    Ms B

  117. The appellant's criticism of the finding that the appellant touched B's lower hips and backside area on more than one occasion is that the FPP did not identify which part of her evidence they relied upon or how they reconciled her inconsistencies. The FPP referred to her statement of 1 July 2011, her statement to the police in January 2012 and her evidence to the Crown Court. B confirmed her earlier evidence at the FPP hearing and was cross-examined about all her witness statements including that from 14 January 2015 for the proceedings before the FPP. The appellant had accepted that he may have touched B unintentionally or accidently.
  118. On the issue of touching, therefore, alleged under paragraph 7(b) of the charges there was sufficient evidential basis for the finding of the FPP from the various sources. The FPP had explained their preference for the evidence of the complainants as genuine and unembellished (paragraph 56) and, in particular, that B was credible (paragraph 92). They had had the advantage of observing B give her evidence on that allegation, be cross-examined and were perfectly able to judge her veracity or otherwise. There was a fair basis for what they found and there was, in my judgment, no reason for them to explain the reconciliation of the inconsistencies such as they were.
  119. In her witness statement of 1 July 2011 B explained that she rotated up to the main theatres in April of that year and as a consequence only worked with the appellant two or three more times. No more physical contact occurred. The appellant contends that it is unlikely that anyone could continue working with a sexual assailant but that was a matter for the FPP to determine in the circumstances before them, doubtless influenced by their findings on the truthfulness of the witnesses.
  120. The appellant contends that there was no evidence before the FPP to enable them to conclude that the appellant used words to the effect that he and B should get together and have some drinks (allegation paragraph 7.c).
  121. The FPP had accepted that B may have conflated certain events when dealing with the allegation about reaching over a trolley and placing his hand against her lower abdomen (paragraph 118 of the determination) and so found that the allegation at paragraph 8 was not proved. That finding had no effect on the FPP's determination of the allegation at 7.c. That was an entirely different allegation and the FPP had been told to consider each allegation separately which it did. In reaching its finding on 7.c the FPP referred to B's statement to the Trust of 1 July 2011 and noted that the appellant and B were on friendly terms and knew each other socially through their children outside the working environment. The FPP recorded that the appellant had suggested meeting up with B although he had suggested that had been a joke. Given the social contact between the two the FPP considered that it was more likely than not that the appellant had said the words alleged. They were entitled to come to that conclusion having seen both the appellant and B give evidence. They had to resolve a conflict of fact on the basis of whose evidence they preferred and did so. Nothing further was expected of them.
  122. The FPP found the allegations at paragraph 6.a and 6.b proved. They concerned allegations that the appellant had asked B personal questions such as "what are you doing at the week-end?" and "will your husband be there, or will you be alone?" The social contact and text messages between the appellant and B were explored in cross-examination. B explained that the New Year's Eve text was sent to everyone in her phone address book. There was contact with the appellant because of the friendship between their two sons. She had taken her son to his son's birthday party, together with her husband and they had spoken subsequently because of their children. The FPP referred to the social contact between the appellant and B in their determination. At paragraph 93 it was recorded:
  123. "93. It was accepted that you and Ms B knew each other outside the hospital, on account of your children being in the same class at school. The Panel heard that you and Ms B had exchanged mobile telephone numbers and that you saw each other on occasions linked with your children outside the hospital."

    And at [95]:

    "95. You did not dispute the time period alleged. You told the Panel that there was a friendly atmosphere at KCH and that it was usual for there to be social conversation between colleagues. You also stated that you regarded Ms B as a family friend and that she had attended your son's birthday party after these incidents took place. In your evidence at the Crown Court, you acknowledged that you engaged in social conversation with Ms B and accepted that you would have asked Ms B about her plans for the weekend."
  124. The FPP were entitled, on the evidence before them, to find the allegations proved.
  125. The FPP did not find the allegations in paragraphs 8 and 9 proved. Paragraph 8 related to the appellant reaching over a trolley and placing a hand on B's lower abdomen and paragraph 9 related to the same day in February 2011 when B was reading the operating list that the appellant came up behind her and placed both hands on her bottom. The FPP referred to B's initial statement to the Trust, her statement to the police of 5 January 2012 and concluded that as the allegation 9 was worded to deal with a separate occasion on the same day in February 2011 as the allegation about touching B's lower abdomen (which had not been found proved because they were unable to rely on her evidence on allegation 8), their finding in relation to the time period applied equally to the allegation under paragraph 9 and, therefore, they were unable to be satisfied on the balance of probabilities. There is nothing inconsistent in the FPP's approach to those findings and their approach to others. Allegations 8 and 9 were alleged to be on the same day in February 2011 but in her oral evidence B said it could have been February 2011 or March 2011. She had not mentioned a number of incidents in her statement to the Trust. There was a clear link between the allegations 8 and 9 due to their timing. It was open to the FPP, in those circumstances, to apply the doubt that they had to both incidents. That nexus did not apply to other allegations.
  126. Paragraph 10 alleged that B did not consent to the actions in paragraphs 7, 8 and 9. Only the allegation in relation to 7.b was found proved. The FPP accepted, in relation to paragraph 10, that there were occasions when B and the appellant worked in close proximity and it may have been necessary for the appellant to require B to move from time to time. Although consent would be implied on those occasions for the appellant to touch B it was not necessary in any circumstances for the appellant to touch B on her bottom due to the intimacy of that action. Because of her difficulty in recalling the timing of the incidents the FPP preferred her oral testimony which was clear and consistent on the way in which the appellant had touched her. The FPP relied on that to make their finding. That was a perfectly adequate conclusion on a relatively simple allegation of factual conflict. There was no need for the FPP to do more.
  127. In making their findings in relation to B the FPP were at pains to consider each of the allegations separately, as they had been advised to do by their legal assessor. Where they were not satisfied with B's evidence they did not find the allegations proved. That was entirely consistent with what they had said would be their general approach. I do not consider that there was any obligation upon the FPP to do anything further than that which they did in the specific circumstances of the contested allegations. There was sufficient evidence for them to reach the conclusions that they did and it is clear that they had regard to the previous statements from the initiation of the complaint through to the proceedings before them.
  128. In coming to their conclusion the FPP took into account the delay in the initial report of the events and adopted a cautious approach: see paragraph 60 of the decision letter.
  129. Ms C

  130. The FPP adopted a similar approach in the sense of taking into account all of the previous evidence that would be relevant to the allegations made in respect of C and considered each of the allegations individually.
  131. The appellant submits that the FPP's conclusion at paragraph 131 on the quality and credibility of C as a witness was amazing given the constant changes to her evidence. Paragraph 131 is an assessment of C's oral testimony. That was a judgment for the FPP to make on the basis of what they had seen and heard.
  132. The allegation at paragraph 11.a that C was working in the theatre on the computer when the appellant approached her from behind was supported by C's initial statement dated 23 June 2011 and her statement to the police dated 21 December 2011. She was subject to thorough cross-examination and conceded, as is evident from the transcript, that she was mistaken about the timings of the incidents. However, as to her account of the event she was consistent that the incident occurred on 2 April. She was able to pinpoint that date by reference to a family bereavement. In its determination the FPP were satisfied on the balance of probabilities that the incident occurred on 2 April 2011 notwithstanding that C may have the timings wrong. The appellant had not disputed that he had approached C whilst she was working at the computer. The FPP considered that it was more likely than not that C would have been facing the computer screen so that in order to approach her it was more likely that he did so from behind. Although the appellant contends that C got the entire account wrong there is no basis for that submission. There was sufficient evidence for the FPP to find in favour of C's account.
  133. The same applies to the other parts of paragraph 11, namely, (b) that the appellant put his arm around C's shoulder, (c) that he moved his hand down her back, (d) that he patted her bottom, (e) that he rubbed her bottom and (f) that he held his arms out towards her and asked her to come back to him after she had moved away. On each of those particulars the FPP provided reasons, sometimes they were short, sometimes they referred to the earlier statements of 23 June 2011 and to C's police statements as well as her oral testimony. There is no obligation on the FPP to deal with matters in intricate detail provided that they deal with the main points that were raised. That is what they did in that part of the decision letter.
  134. Paragraph 12.a of the allegations alleged that on a further occasion on 2 April the appellant had asked C why she kept running away from him. As the FPP had preferred the evidence of C on the incident of 2 April they found that it was more likely than not that the appellant had spoken to C as alleged. That was sufficient reason for them to express given that this was a conflict of fact between C and the appellant.
  135. Paragraph 13 alleged that C did not consent to the actions alleged under paragraphs 11 and 12. The FPP found the allegation was proved in relation to 11.c, 11.d and 11.e. On each occasion it found that C did not want the appellant to touch her as it had found that he had done and that she did not give her express or implied consent. Again, that was a finding the FPP were entitled to make from her oral testimony.
  136. Paragraph 14 alleged that in relation to the charges regarding A, B and C at paragraphs 2, 3, 4, 6, 7, 8, 9, 11 and 12 the appellant's behaviour was inappropriate. In relation to paragraphs 7.b, 7.c, 11.c, 11.d, 11.e and 11.f and 12.a the allegations were found proved. 14.b alleged that the appellant's behaviour was sexually motivated. The FPP found that the charges in paragraphs 7.b, 11.c, 11.c, 11.d and 11.f were. In each case that was a matter of judgment for the Panel on the facts that they had found and the context in which they had made those findings.
  137. The transcript of the evidence in relation to both B and C makes it clear that each of them was doing the best they could to recall what had happened some time ago. During the course of cross-examination previous accounts were put to each of them including the account that each had given in the Crown Court. The FPP was under no obligation to deal with absolutely everything that was raised in cross-examination. It has to be remembered that it was not writing an examination paper but providing a determination after a fitness to practise hearing where the main parties were aware of the main arguments and details that flowed from them. The FPP made it clear that it had read the transcripts of all of the evidence from the hearing in advance of closing submissions as was verified by counsel for the GMC prior to making her closing remarks.
  138. As to the issue of collusion and contamination it is clear that the FPP were alert to that issue: see paragraph 51 to 54 of the determination. They made it clear that in relation to each of the allegations the FPP examined them on a paragraph by paragraph basis and examined on each occasion where there were inconsistencies and discrepancies whether that materially impacted on the credibility of the complainant's evidence.
  139. Not only were the FPP advised in clear terms by their legal assessor on the issue of collusion and potential contamination but they heard cross-examination on the issue, for example, that the three complainants had shared a room when giving evidence at the Crown Court (set out above at paragraphs 45 and 46) and that either two or all three of them had had a meeting with a lady from HR. As to who saw whom and who said what and the potential for further contact that was all explored in cross-examination. The FPP indicated that it adopted a cautious approach to the complainants' evidence because of the collusion issue and there is no evidence to demonstrate that they ignored the legal assessor's advice on contamination which the appellant accepts was correct.
  140. Mr Siddle's evidence, too, was expressly referred to by the FPP. He was questioned about the Theatreman records but although they did not support the evidence of the complainants about timing they did support C's account of working with the appellant on 2 April 2011. Given the objective importance of the records it was fair for the FPP to ask questions of Mr Siddle.
  141. Dawn Martindale, too, was questioned by the FPP as to how the Theatreman documents were compiled and to their ability to be altered and audited. The FPP needed to be satisfied of the integrity of the documentation if they were to rely upon it. In so doing there is no evidence that they did not take into account the evidence of Dawn Martindale or all of the documentary evidence: indeed, the converse is true on a fair reading of the determination letter.
  142. The appellant's evidence was assessed on the basis of his good character (see paragraph 56 of the determination) but the FPP set out that they did not find his explanation convincing as to his behaviour in the anaesthetic room. Accordingly, the FPP was not satisfied that the appellant's evidence was wholly reliable. When it was in conflict with the evidence of the complainants therefore, the FPP preferred what it adjudged to be a genuine and unembellished account by the witnesses. They were entitled to come to that view as finders of primary fact.
  143. In coming to their views the FPP considered the totality of the evidence before them, including that of the appellant, and found a large number of the allegations not proved.
  144. Accordingly I am satisfied that in the circumstances of this hearing the FPP gave adequate reasons for their findings on each of the allegations against the appellant.
  145. As the challenge on the basis of reasons was agreed to be the primary ground of challenge I can deal with the other two grounds more shortly.
  146. Perversity

  147. The appellant contends that the case before the FPP was exceptional. It involved three complainants with the opportunity for them to speak and so raising the risk of collusion and collaboration. It was, in effect, a retrial after a hearing at the Trust and the Crown Court. There was a mass of evidence, documentary and oral, and, therefore, it was not sufficient to do what the FPP did.
  148. As I have set out, although there was a large amount of documentary evidence as well as oral testimony over many days, the heart of the case revolved around the simple issue of credibility as between the appellant and the complainants. There were no issues of legal complexity. The case does not raise anything like the exceptional circumstances of the cases of Southall or Yaacoub. In the former the complainant accused the appellant there of being hostile towards her and of accusing her of being the murderer of her son by drugging him and hanging him but the FPP in making its finding made no reference to the appellant's evidence and made limited findings in relation to the evidence of a relevant social worker. In the latter, the complainant had changed her story radically from being an allegation of inappropriate use of sexual language and attempted sexual touching to one of gross indecency and rape. Those cases are entirely distinguishable from the current case where, although there were some inconsistencies in account, the situation was more akin to that in Mubarak v General Medical Council [2008] EWHC 2830 (Admin) at [20] where it was said:
  149. "The task [for the Panel] is to consider whether the core allegations are true. It is commonplace for there to be inconsistency and confusion about details of varying importance."
  150. Although there was some inconsistency of account here the FPP focussed on the core allegations and made justifiable conclusions according to their factual findings.
  151. Accordingly, the circumstances here, in my judgment, even putting all the appellant's complaints together, do not approach the threshold of exceptionality.
  152. Appearance of Bias

  153. The appellant submits that the composition of the FPP complied with the rules but all were, in fact, lawyers. One was a qualified solicitor but not practising, one was an employed barrister and the other was a medical member who also had legal qualifications. The issue of the composition of the FPP was raised by Miss O'Rourke QC, on behalf of the appellant, during the hearing on 21 May when the FPP reassembled seeking further submissions in relation to certain questions and when they considered amending the charges against the appellant. In the event, the legal assessor advised the FPP as to the process to be followed, namely, to consider the exercise of their discretion under rule 17(3) as to whether to amend the allegations and whether the proposed amendment would cause injustice. If that was the case the issue was whether the injustice could be cured in any way. Both counsel agreed with the advice that was given to the FPP which decided not to amend the allegations.
  154. There was nothing untoward on the topics on which the FPP conducted any questioning during the course of the hearing.
  155. Further, the FPP decided to admit the transcript of B's Crown Court evidence on 26 January 2015, granted the appellant's application for an adjournment on 18 May 2015 and upheld an application under rule 17(2)(g) in respect of the charge at paragraph 12(b). Those were all rulings in the appellant's favour. Many of the allegations made were found not to be proved thus illustrating that the FPP considered each allegation, as advised, on an individual basis and made individual conclusions on each.
  156. A lengthy period of deliberations has no bearing on the issue of bias at all but, rather, reflects the length of the case and the nature of the issues which the FPP had to determine.
  157. I can see no basis upon which a fair minded and informed observer who was not unduly sensitive or suspicious nor complacent could conclude on the circumstances here that there was any real possibility that the tribunal was biased.
  158. In the circumstances the appeal is dismissed on all grounds.

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