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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Gopalakrishnan, R (on the application of) v General Medical Council  EWHC 1247 (Admin) (26 May 2016)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN (on the application of) DR SENTHIL GOPALAKRISHNAN
|- and -
GENERAL MEDICAL COUNCIL
Ivan Hare (instructed by GMC Legal) for the Defendant
Hearing dates: 12 May 2016
Crown Copyright ©
Mrs Justice Patterson DBE:
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.
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.
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.
Determination by the FPP
"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.
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."
"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."
"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."
"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."
"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  AC 370); more recently, the test has been put that an appellant must establish that the fact-finder was plainly wrong (per Stuart-Smith LJ in National Justice Cia Naviera SA v Prudential Assurance Co Ltd (The Ikarian Reefer)  1 Lloyd's Rep 455 at 458). Further, the court should only reverse a finding on the facts if it 'can be shown that the findings were sufficiently out of tune with the evidence to indicate with reasonable certainty that the evidence had been misread' (per Lord Hailsham of St Marylebone LC in Libman v General Medical Council  AC 217 at 221F more recently confirmed in R(Campbell) v General Medical Council  1 WLR 3488 at  per Judge LJ). Finally, in Gupta v General Medical Council  1 WLR 1691, Lord Rodger put the matter in this way (at  page 1697D):
'In all such cases the appeal court readily acknowledges that the first instance body enjoys an advantage which the appeal court does not have, precisely because that body is in a better position to judge the credibility and reliability of the evidence given by the witnesses. In some appeals that advantage may not be significant since the witnesses' credibility and reliability are not in issue. But in many cases the advantage is very significant and the appeal court recognises that it should accordingly be slow to interfere with the decisions on matters of fact taken by the first instance body. This reluctance to interfere is not due to any lack of jurisdiction to do so. Rather, in exercising its full jurisdiction, the appeal court acknowledges that, if the first instance body has observed the witnesses and weighed their evidence, its decision on such matters is more likely to be correct than any decision of a court which cannot deploy those factors when assessing the position.'
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."
"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."
"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  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  EWCA 407). In Selvanathan v GMC  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.'"
(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."
"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."
"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."
"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."
"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."
"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."
"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."
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: YesQ: 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."
"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."
"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, before and after. Yes, the whole day.
Q: Also in the hotel as well?
A: No, the whole day.
Q: The whole day?
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'?
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."
"Q: However, you had had a discussion with Mr Siddle, had you not?
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.
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."
"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.
Q: You then say, 'which did not worry me'.
Q: That is presumably because you see that as a consolatory hug or ---
A: I would say that that is an ordinary response."
"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.
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."
"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.
"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?
Q: Also, 'certainly a Saturday'.
"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."
"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."
"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?
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?
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."
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."
"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."
Discussion and Conclusions
"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. 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."
"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."
Appearance of Bias